The Legitimation by Procedure and Concretion of General Clauses in Private Law: An Examination through the Lens of Niklas Luhmann’s Theory and the Dilemmas Surrounding Transparent Decision-Making in the Pursuit of Communicative Coherence

Abstract

The present study problematizes the process of concretizing general clauses, taken as “blank checks” delivered to the decision-maker, the authentic interpreter, in the sphere of institutionality of the jurisdiction of private law and its contribution to the legitimization of the Judiciary within society, the light of Niklas Luhmann’s theory of legitimation by procedure. As a hypothesis, it is assumed that a process of implementing general clauses that are transparent and coherent with the legal system can reduce the insecurity of social relations, providing legitimacy from the procedure for creating the law in the specific case, observing criteria of communicative coherence, such as non-ambiguity, cohesion, thematic continuity, intentionality, mutual acceptability, and situationality. As a general objective, we analyze the process of implementing general clauses by judges who are considered models of behavior and valuation guidelines not described in the general clause. However, they are interrelated with the legitimacy of the Judiciary and the SDGs/UN, particularly SDG16, subitem 16.6 whose goal is “to develop effective, responsible and transparent systems for the administration of justice.” The research is developed along the lines of Semiology and Institutions of the Justice System, with bibliographic and documentary reviews being adopted as methodological procedures, with content analysis and critical propositions. The expected results highlight the importance of the quality decision-making process for the implementation of general clauses and the legitimization of the Judiciary, subject to adequate justification, and the participation of the parties, which contribute to the trust and stability of the legal system.