A colisão entre a liberdade de testar e as limitações impostas pelo direito sucessório: uma análise a partir da teoria sistêmica de Luhmann

Abstract

The work seeks to analyze the legal limitations imposed on the testator through institutes of succession law in relation to the constitutional right to freedom and autonomy of the person's will. With this, the objective of examining the right to freedom in the constitutional scope and succession law regarding the rules of the testament, as well as comparing these institutes and analyzing them from a sociological perspective with systemic theory and the parable of the twelfth camel proposed by Niklas Luhmann. Thus, the research problem presents itself: Under what foundations is Systemic Theory able to deal with the demands of a democratic society, which has complex irritations in a large and diverse communication network that limit the testator's will. As hypotheses, he highlighted whether Luhmann's Systemic Theory and normative law would be able to resolve or balance the existing confrontation between the freedom and autonomy of the testator's will and the provisions of inheritance law that limit the freedom to test. The systemic methodology was used, taking into account the need for a sociological approach, based on the analysis of society and its complexity, with the confrontation between the right to freedom, its application constitutional, and the reflections on infra-constitutional legislation regarding the inheritance right to test, based on a reflection on the parable of the twelfth camel by Niklas Luhmann. It can be seen that normative law is not being able to keep up with social changes and developments in terms of their impact on inheritance law, as there are institutes such as the right to inheritance that have remained unchanged since their entry into the Brazilian legal system, however, changes in family forms, the appreciation of affection and the greater need for freedom and autonomy of the person that today requires no longer accommodate the rigid norms of other times. Thus, Luhmann's systemic theory presented itself as a means of resolving the collision of rights, bearing in mind that, with the irritations caused by the Law system resulting from the changes in the polycontextual society, the paradoxes that arise from it can be better handled by Power. Judiciary in which they apply standards in decisions analyzing the context and reality of social facts.