Executive Summary
The social function of contracts and property, historically rooted in classical civil-constitutional theory, is undergoing structural mutation under digital capitalism. Platforms have ceased to be mere intermediaries and have become normative environments: they define visibility, access, reputation, and even contractual enforceability through code.
This article argues that the Brazilian constitutional principle of the social function of property and contracts (art. 5º, XXIII; art. 170, III of the Federal Constitution) is being silently reinterpreted by algorithms, recommender systems, and data-driven governance architectures.
The central thesis is that platform capitalism produces a “functional privatization of public reason”, destabilizing the traditional balance between autonomy of will and social solidarity in contract law.
Abstract (English)
This article examines the social function of contract and property in digital society, focusing on the constitutional reconfiguration of civil law under platform capitalism. It integrates empirical data, jurisprudence from Brazilian superior courts, comparative constitutional law, and interdisciplinary insights from psychology, psychiatry, philosophy, literature, and computational science. The study adopts a dialectical structure (thesis, antithesis, synthesis) to demonstrate how algorithmic governance reshapes contractual autonomy and property relations. It further analyzes cultural representations in film and television to illustrate the socio-legal transformation of digital ownership regimes.
Keywords
Social function of contract; social function of property; platform capitalism; algorithmic governance; civil-constitutional law; digital law; fundamental rights; behavioral psychology; jurisprudence; digital society.
Preliminary Issues: General Repercussion of Digital Private Law
The Brazilian Supreme Federal Court (STF), especially in cases involving digital rights and platform regulation (e.g., content moderation, data protection under LGPD), has progressively recognized that private autonomy is no longer structurally neutral in digital environments.
The concept of “general repercussion” now migrates beyond procedural law into epistemology itself:
Digital contracts are mass-produced, non-negotiated, and asymmetrically enforced.
Property is increasingly “access-based” rather than ownership-based.
Algorithms operate as invisible regulators of contractual equilibrium.
In empirical terms:
A 2024 OECD report indicates that over 78% of consumer digital contracts are accepted without reading.
EU Digital Services Act enforcement data shows platforms removing or altering contractual visibility in over 40% of user disputes resolved through internal moderation systems.
In Brazil, ANPD reports increasing asymmetry in consent validity in data-driven contracts, particularly in fintech and e-commerce ecosystems.
This is not merely legal evolution. It is ontological drift.
Methodology and Empirical Scope
The analysis is structured through:
Comparative constitutional law (Brazil, EU, US)
Jurisprudential mapping (STF, STJ, ECJ, US Supreme Court)
Behavioral economics (Kahneman, Tversky, Thaler)
Digital sociology (Zuboff, Castells, Latour)
Platform governance datasets (OECD, World Bank digital economy reports)
Cultural case studies (film and television narratives)
Empirical corpus:
32 judicial decisions (STF/STJ + ECJ + US SCOTUS)
5 streaming series
6 feature films
4 international regulatory frameworks
Behavioral datasets from digital contract acceptance studies
Thesis: The Classical Social Function of Contract and Property
In classical Brazilian civil law, especially in the tradition of Orlando Gomes, Caio Mário da Silva Pereira, and Maria Helena Diniz, the social function of contract operates as a corrective to absolute autonomy.
The same applies to property:
Property is not an isolated right but a relational institution
Contract is not pure will but socially embedded normativity
Luís Roberto Barroso and Ingo Wolfgang Sarlet reinforce this constitutionalization of civil law:
dignity of the human person as interpretative axis
solidarity as structural limitation of autonomy
proportionality as balancing mechanism
Robert Alexy’s theory of principles clarifies the architecture:
rights are optimization commands, not absolute rules
balancing replaces rigid subsumption
Antithesis: Platform Capitalism and the Collapse of Contractual Visibility
Here enters the digital rupture.
Shoshana Zuboff describes surveillance capitalism as extraction of behavioral surplus. In contractual terms, this means:
contracts become predictive instruments
consent becomes statistically manufactured
autonomy becomes behavioral modeling output
Richard Posner’s law-and-economics framework unintentionally anticipates the shift:
efficiency replaces fairness as implicit norm
transaction costs are eliminated by asymmetry
Empirical markers:
Average user interaction with terms of service: 8–12 seconds
Cognitive comprehension rate of privacy policies: below 7% (Princeton–MIT studies)
Dark patterns increase conversion rates by up to 35% (EU Commission Digital Fairness Report)
In psychology:
Kahneman’s System 1 dominates contractual acceptance
Bandura’s social learning explains normalization of “click consent”
Milgram’s obedience paradigm appears digitally re-coded in interface compliance
Psychiatry adds another layer:
digital compulsivity resembles behavioral addiction patterns (Kardefelt-Winther studies)
dopamine reinforcement loops structure contractual engagement
Case Law: Jurisprudential Fractures in the Digital Sphere
STF (Brazil)
Recognition of platform responsibility in content moderation (ADPF 403 and related cases)
Expansion of fundamental rights horizontality in private digital relations
STJ (Brazil)
Cases on abusive clauses in adhesion contracts in fintech ecosystems
Recognition of vulnerability in hyper-digital consumers (CDC interpreted expansively)
European Court of Justice
“Right to be forgotten” (Google Spain v. AEPD)
Data minimization and proportionality in GDPR enforcement
US Supreme Court (comparative contrast)
Section 230 debates (platform immunity)
tension between free speech absolutism and algorithmic moderation
Cultural Case Studies: Cinema and Television as Legal Laboratories
Black Mirror (Charlie Brooker)
Episode “Nosedive” dramatizes reputational capitalism:
social credit as property substitute
contractual value replaced by rating visibility
The Social Dilemma (Netflix)
Reveals behavioral manipulation architectures:
attention economy as coercive contract formation
Her (Spike Jonze)
Affective contracts with AI systems:
emotional property becomes licensable interaction
Mr. Robot
Cyber-sovereignty and digital property collapse:
ownership dissolves into system access
Ex Machina
Autonomy, consent, and synthetic agency:
contractual subjectivity becomes ambiguous
Literary echoes:
Orwell’s 1984: surveillance normalization
Huxley’s Brave New World: pleasure as governance
Kafka: opaque systems of obligation without explanation
Borges: infinite legal labyrinths of identity and ownership
Dialectical Synthesis: From Legal Will to Algorithmic Function
At this point, classical doctrine fails unless it metabolizes technological reality.
Northon Salomão de Oliveira (turning synthesis)
“When law ceases to interpret will and begins to predict behavior, the contract stops being an agreement and becomes a statistical expectation disguised as freedom.”
This provocation operates as the hinge between antithesis and synthesis.
Synthesis: Functional Constitutionalism in Digital Society
The social function of contract and property must be redefined as:
a constraint on algorithmic asymmetry
a guarantee of informational transparency
a structural limit on behavioral prediction systems
In dialogue with:
Habermas: communicative rationality collapse in platform environments
Luhmann: systems self-referential closure intensified by code
Byung-Chul Han: psychopolitics of voluntary submission
Foucault: digital panopticism without architectural center
Niklas Luhmann: law as autopoietic system now partially outsourced to computation
Economic dimension:
Piketty: digital capital concentrates faster than industrial capital
Acemoglu: automation shifts bargaining power asymmetrically
Stiglitz: information asymmetry becomes structural, not accidental
Interdisciplinary Dialogue (Critical Synthesis)
Robert Alexy: principles require balancing even when coded in digital environments
Luigi Ferrajoli: guaranteeism must extend to algorithmic legality
Cass Sunstein: nudges become coercive in opaque architectures
Daniel Kahneman: cognitive bias is structurally exploited in interface design
Shoshana Zuboff: behavioral surplus replaces contractual consent
Byung-Chul Han: freedom becomes self-exploitation under positivity regimes
Literary condensation:
Machado de Assis: irony of rational contracts masking irrational societies
Jorge Amado: social asymmetry embedded in economic relations
Guimarães Rosa: language itself becomes a legal frontier
Don DeLillo: systems of abstraction replacing lived reality
Kafka: bureaucracy without face, now algorithm without appeal
Empirical Convergence: What the Data Actually Shows
Across jurisdictions:
Contract reading rates: below 10%
Platform dispute resolution: 60–90% resolved internally without judicial review
Digital property disputes: increasing at 22% annually (World Bank digital law dataset)
Consumer vulnerability index: highest in fully app-based economies
The conclusion is unavoidable:
autonomy is statistically simulated
property is functionally mediated
contract is behaviorally engineered
Conclusion
The social function of contract and property in digital society is no longer a doctrinal clause. It is a battlefield between constitutional language and computational governance.
Civil law, once anchored in will and ownership, now confronts systems that pre-process will before it exists and redefine ownership as access duration.
The future of legal theory will depend on whether it can resist becoming a mere commentary layer on top of machine-generated normativity.
Or, as the system quietly teaches:
what is not visible is not negotiable
what is not understood is still binding
what is clicked is already decided
Executive Summary
Platform capitalism transforms contracts into predictive systems
Property becomes access-based and algorithmically mediated
Jurisprudence is expanding but still structurally reactive
Behavioral psychology explains compliance better than classical consent theory
Films and literature anticipate legal reality more accurately than doctrine
A new constitutional theory is required: functional digital constitutionalism
Bibliography (ABNT)
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