NEOCONSTITUTIONALISM AND PRIVATE LAW: A SYSTEMICAUTOPOIETIC APPROACH OF THE EVOLUTION OF THE AUTONOMY OF THE WILL ON CONTRACTS

This article approaches the changes in the juridical interpretation of contractual autonomy of will. The problem that has guided it was: how to understand, from a sociological (and evolving) legal perspective, the neoconstitutionalism, which can be defined herein, in advance, especially as the influence (or even defining) of the constitutional principles on civil law – and what does this influence lead to the autonomy of the contract will? As a hypothesis, it shows that Law is a communicative, social, autopoietic system, and therefore, cognitively open, but structurally closed. Its open cognition allows its internal irritation from the observation of the social environment, in a reflexive understanding of communications in society. Either if it is a reflection of changes in laws, or a self-perceived inner necessity from the observation of the environment, the modification of an order is not isolated, being constituted as responsive evolution to historical movements occurred in society. The constitutionalization of the contractual autonomy of will is therefore a responsive internal reflection to the complexity of the environment, which is learned by the Law system. Its development takes place in three stages: 1) observation of constitutionalization of Private Law from the theory of autopoietic systems, making it from the study of the internal complexity of the law system in a reflexive response to the increasing complexity of the environment; 2) approach to the formation and development of the legal concept of autonomy of will; 3) study of the neoconstitutionalism in Brazilian Law and, in particular, its influence on the contractual autonomy of will. The systemic-constructivist methodology is used.