Private Law and State Paternalism: Too Much Legal Regulation of Private Life?

AuthorCarlos A. Rohrmann, Cristiane Rego
Pages236-248
JICLT
Journal of International Commercial Law and Technology
Vol.9, No.4 (2014)
236
Private Law and State Paternalism: Too
Much Legal Regulation of Private Life?
Carlos A. Rohrmann
Doctor of the Science of Law Berkeley, USA
Academic Director, LL.M. Program FDMC,
Belo Horizonte, Brazil
carlosgrico@hotmail.com
Cristiane Rego
Professor at Catholic University of Minas Gerais
Belo Horizonte, Brazil
Abstract. This article analyses the adverse effect of paternalistic
attitudes adopted by the State, especially the legal regulation of private
life. Often, the State has adopted certain positions, especially through the
issuance of r ules and legal decisions in areas where Private Law and
freedom of choice has prevailed, such as private contracts. Due to a
protectionist position adopted by the State, l egal regulation of private life
has increased. The Judiciary resolves questions tha t arise daily in private
orbit precisely because i t is considered as the only social actor able to
implement its own decisions. In such a way, this study seeks to analyze
the possible consequences of this state altruistic posture. It is interesting
to note that such a posture is authoritative at the same time, since
individuals are considered eternally vulnerable and minimizes principles
of Private Law. T his, ultimately, could lead from a democratic system to
an authoritarian one.
1. Introduction
This study aims to analyze the phenomenon of judicial paternalism in its various facets,
a practice that has gained importance in various legal systems today.
In general, the state paternalism can be understood as the phenomenon in which the
State undertakes the role of pr ovider and protector of its members. In various relations,
its members are considered fragile and somehow unfit to act in the management of
certain fields of their private life.
This manifestation of state power must be analyzed with caution since the
individual, who is considered as a being eternally vulnera ble and deserving of a state
protection, now waives her autonomy of th e will. This, ultimately, can lead a
democratic system to become authoritarian. As one of the consequences of paternalism
is the legal regulation of pri vacy. Accepting this state protection, apparently at no cost,
the population relies on the State, especially on the judiciary, to resolve conflicts that
could be decided in the private sphere.

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