O costume no ordenamento brasileiro: há uma força legitimadora?

Abstract

This paper aims to indicate the real dimension of the custom’s legitimating force as a law source in the Brazilian law. In order to delimitate our object, it will be necessary to briefly analyze the custom’s historical context, its origins and its coercive force in the anglo-saxon and in the international systems. It will be equally necessary to briefly distinguish between the custom species: secundum, praeter and contra legem. Afterwards we will try to identify the aspects in common between this normative source and how it is inserted in the Brazilian system. So as to proceed so, it will be made a historical analysis of a symbol, which is meant to be an “agent of custom” in the Brazilian Empire: the juiz de paz. As it follows, it will be made an explanation about the main constitutional and legal articles that refer to the subject. As a result, it will be shown that although the custom has a weak to moderate legitmating formal force, in comparison to the law in stricto sensu, it is notable that there is an acceptation of the customs in the Brazilian law, considering its historical context as a formal law source and interpretation source.