Teoria das fontes do direito empresarial: análise e releitura a partir do paradigma constitucional contemporâneo

Abstract

This work aims to present a re-reading of the theory of the sources of Law, and especially of Business Law, from the new Constitutionalisation of the Law paradigm. The jusphilosophical currents of thought of the exegetical and normativist positivism strongly influenced in the construction of the concepts of sources of Law through history and it is noticed that the current perception of sources of the Business Law does not fit in with the present paradigm brought by the Brazilian Constitution of 1988, carried out by the advancement of the postpositivist current. In order to demonstrate the need for such re-reading, an analysis was made of the historical development of the sources of the Business Law, from the rise of commerce in the Middle Ages, to the Brazilian Civil Code of 2002 with adherence to the Italian ―teoria dell'azienda‖, furthermore, was made the analysis of the current positioning of the fatherland entrepreneurial doctrine on the theme of sources of Business Law. It was found that a great part of the doctrinaires still exteriorizes harmonious conceptions with the current normative positivism. Considering the importance of a correct understanding of sources for a reliable application of law, attentive to the peculiarities of each specific case, aiming at the effectiveness of justice, and also considering the emergence of the neoconstitutional movement linked to post-positivist conceptions, It is necessary to re-read the sources of Law as a whole, and especially Business Law. From this point of view, a new perspective is proposed on the sources of principles, laws in general, doctrine, case law, precedents, international treaties, analogy and customs. In addition, the research methodology used was the literature review, in which it was sought to identify the most relevant doctrines, judicial precedents and scientific works on the subject.