–Anna Claudia Svoboda ,Ph.D. candidate, Pontificial Catholic University of São Paulo
Brazil is currently debating the most comprehensive reform of its Civil Code since the current version came into force in 2002. The proposal aims to revise over a thousand provisions and modernize key areas of private law. The draft, already formalized as Bill 4/2025, is under review in the Federal Senate. Although it follows formal legislative channels, the absence of participatory mechanisms proportionate to the relevance of the text raises legitimate concerns about its democratic legitimacy. Some of the proposed changes—such as the reformulation of objective good faith in contracts, the restructuring of family bonds, changes to personality rights, and adjustments in the legal framework of property—reveal the substantive depth of what is at stake.
Legislative Democracy and Public Participation
The 1988 Constitution establishes a legislative process that goes beyond mere formal legality—it demands substantive legitimacy based on public participation. Although the reform follows the proper legal procedure, it is moving forward without public hearings, institutional consultations with universities, civil society engagement, or open debate accessible to both specialists and the broader public.
This participatory void is especially troubling given the nature of the issues involved: contracts, obligations, family, property, succession, and personality. These are matters that shape daily life for millions of Brazilians. Even in silence, the draft proposes institutional reorganizations of major impact—changes that would require wide public consultation and democratic dialogue prior to consolidation.
Brazil’s legal framework already provides institutional tools that could be activated to enhance the legitimacy of this reform. Public hearings in legislative committees, open consultations through the Senate’s “e-Cidadania” platform, debates organized by public universities and legal research centers, and the creation of interdisciplinary commissions involving the Bar Association, the Public Prosecutor’s Office, and civil society entities all have legal precedent and historical use. Implementing such measures would not require institutional disruption—only the activation of existing resources, with clear gains in democratic transparency and normative clarity.
Constitutional Risks and Possible Paths Forward
The Brazilian constitutional framework supports and encourages public involvement in structural reforms, particularly when they affect key social institutions. The historical process that led to the 2002 Civil Code reflects this spirit: over several decades, the draft matured through public debate, technical review, and dialogue between universities, parliament, professional councils, and legal institutions. This institutional dialogue contributed directly to the quality and public legitimacy of the final text.
In the current process, although isolated expressions from jurists are beginning to emerge—in articles, public events, or statements—the lack of coordinated institutional feedback weakens the necessary counterbalance to the legislative process. The contrast with the earlier reform is striking. The further the bill advances without a shared interpretive framework, the greater the risk that its choices will remain opaque or fragmented.
While legislative reform is necessary and often urgent, its execution must respect the legitimacy framework of the 1988 Constitution. Modernizing civil law requires coordination among legal scholars, institutions, and society. Constitutional pluralism, judicial experience, and comparative references must serve as vectors for collective construction—not as sources of division or technocratic imposition.
Overcoming this silence requires more than criticism—it calls for institutional reconstruction. Public hearings, thematic consultations, academic input, and digital channels for participation are not only feasible; they are guaranteed by the 1988 Constitution, which offers both the tools and the promise of a democratic lawmaking process shaped by plural voices and collective commitment.
Selected Proposals and Their Implications
The reform proposal has not yet been widely discussed in society and has not been accompanied by any explanatory memorandum outlining its legal or conceptual guidelines. As a result, a significant portion of its interpretation depends on how the articles are drafted—and on what can be inferred from what is said, and especially from what is left unsaid.
Contracts and Objective Good Faith
The bill maintains the requirement that contracts fulfill their social function, but introduces significant changes to the clause on objective good faith. The new language emphasizes contractual freedom and predictability, shifting the focus away from the integrative and corrective role traditionally assigned to good faith in private relations. This reformulation may diminish its function as a balancing tool in situations of contractual vulnerability, weakening the protection of legitimate expectations—a structural value recognized by Brazilian legal doctrine and jurisprudence since the 2002 Civil Code. Depending on how it is interpreted, the new text may signal a paradigm shift in how expectations between contracting parties are regulated.
Family and Legal Bonds
In the field of family law, the proposal revises provisions on property regimes, stable unions, and parental authority, aiming at greater normative clarity and alignment with existing jurisprudence. It consolidates rules on the division of assets and introduces adjustments to parental duties, reinforcing shared responsibilities. However, the draft stops short of incorporating legal recognition of more complex familial realities, such as multiparenthood, socio-affective bonds, or diverse household arrangements. By restricting the scope of reform to formal aspects, the proposal may maintain legal certainty but leaves unresolved relevant debates on plural family models that have gained recognition in courts rulings and academic research.
Personality Rights and the Digital Dimension
The provisions concerning name, image, body, and private life remain close to the current version, but they do not engage with contemporary challenges—such as gender identity, bodily autonomy in medical and digital contexts, or the protection of personal data in online environments. Although personal data is described as inviolable, there is no clear alignment with Brazil’s General Data Protection Law (LGPD). The absence of guiding principles or enforcement mechanisms may generate legal uncertainty precisely in the most sensitive areas of modern civil law.
The draft mentions the inviolability of personal data but fails to integrate the principles of Brazil’s General Data Protection Law (LGPD), currently in force. It omits core LGPD pillars such as informed consent, data minimization, transparency, and accountability. Without such alignment, the new Civil Code risks normative conflict, limited reparatory reach, and legal uncertainty in highly sensitive domains—such as digital identity, image exposure, and the handling of sensitive personal data in private contexts.
Property and Social Function
The section on property was also revised, though discreetly. The draft alters how the social function of property is formulated, yet it offers no clear technical or social justification for the change. In a country marked by land disputes, urban inequality, and environmental challenges, norms governing possession, ownership, and socio-environmental responsibility require special attention and interpretive coherence. Remaining silent on these principles does not neutralize their legal impact—it merely transfers the tension to the judicial sphere.
These examples do not aim to exhaust the debate or offer a conclusive judgment on the bill. Rather, they illustrate how, in legislation of this scale, the absence of plural debate may translate into silent choices that end up having vague but substantia impacts.
Comparative Experiences and the Brazilian Precedent
Several countries have adopted participatory legislative processes in structural reforms of private law. Member states of the European Union often combine public hearings, digital consultations, and detailed explanatory memoranda. Latin American experiences, such as that of Chile, have stood out for their transparent and inclusive mechanisms of normative deliberation. The country has not only thoroughly revised its civil legislation in recent years but also attempted an unprecedented albeit to date unsuccesful constitutional process with strong popular involvement, seeking to reconstruct its normative pact through plural listening. The Argentine model also became a reference point by reforming its Civil and Commercial Code in 2015 with broad academic, social, and institutional participation—including public hearings, technical commissions, and the express incorporation of fundamental rights and constitutional principles into private law. The German model, long admired in Brazil, maintains a tradition of technically crafted legislation accompanied by extensive explanatory reports accessible to both academic and professional audiences.
In Brazil, the development of the 2002 Civil Code became a notable example of open legislative construction. The bill was under discussion in Congress for decades and went through successive phases of revision, public debate, and technical review. Active participation by universities, the Bar Association, the Institute of Brazilian Lawyers, and sectors of the Judiciary was instrumental in maturing the draft. Contributions came from jurists of diverse perspectives, with open parliamentary sessions, comparative international analyses, and strong academic engagement. This process gave the 2002 Code a rare degree of institutional legitimacy, reinforced by the interpretive transparency that accompanied its formulation.
Risks of Silent Judicialization
The lack of a participatory foundation and consistent interpretive justifications may increase uncertainty about how the new Code will be applied. Without a structured public debate, there is room for conflicting interpretations, which are likely to be resolved through the courts. In the absence of a common horizon of meaning, there is a growing risk that the application of the new law will be shaped predominantly by the judiciary, rather than being the result of democratic legislative construction.
This silent judicialization does not merely burden the judicial system—it reflects a disconnect between the legal text and the social legitimacy of its creation.
The absence of public participation and interpretive guidance risks transferring the burden of legal meaning to the judiciary. In an ambiguous normative context, courts would be tasked with defining the scope and coherence of the new civil norms. This institutional shift could result in judicial overload, inconsistent rulings, legal uncertainty in private relations, and dependence on case-by-case interpretation. More than a technical issue, this represents an erosion of democratic legitimacy—where interpretive consensus is formed ex post, rather than through constitutionally grounded pre-legislative dialogue.
Conclusion: Legitimacy Requires Listening
In this context, critically engaging with the proposed reform of the Civil Code requires close attention to constitutional pluralism, the role of legal scholarship, and the need for qualified institutional dialogue. The Constitution is not an obstacle to the modernization of civil law — it is, rather, its source of legitimacy and the starting point for any transformative project. Preserving this coherence does not mean resisting innovation, but committing to a responsible renewal that acknowledges the complexity of legal relationships, the civilizational advances already achieved, and the strategic role of institutions in building consensus.
Reforms of such magnitude demand more than technical precision: they require democratic, institutional, and deliberative legitimacy. Reopening the debate is not a delay — it is what gives the process the national meaning it deserves. In a country founded on constitutional principles, legislating without listening is, even if unintentionally, legislating in silence.
Suggested citation: Anna Claudia Svoboda, Legislating in Silence: The Reform of the Brazilian Civil Code and Its Democratic Deficit, Int’l J. Const. L. Blog, Aug. 2, 2025, at: http://www.iconnectblog.com/legislating-in-silence-the-reform-of-the-brazilian-civil-code-and-its-democratic-deficit/
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