A vinculação dos particulares aos direitos fundamentais

Abstract

The purpose of this essay is to analyze the effectiveness of fundamental rights in the relations between private parties and the approach given to this theory in Brazil’s legal system. At first, we studied the evolution of the fundamental rights theory, from the Liberal State to the Post- Welfare State era, in order to establish the conditions that precede the recognition of the applicability of fundamental rights in private relations, which are: the end of the dichotomy Public-Private Law, the growth of power amongst private parties, and the acceptance of the normative power of the Constitution. Then, we will present some aspects concerning the main theories on the theme, developed by the international authors. In addition, having in mind that the problem concerning the effectiveness of fundamental right is a major issue in Brazil, it is our aim to defend the use of the horizontal effect of fundamental rights in its direct form, since it represents an important tool to build a free, just and solidary society. The final part of this study consists in examining the position of the Brazilian authors and the Constitutional Court on the subject, so as to give a broad view of how this issue is being treated within our context.