The effectiveness of fundamental rights in private relations under the approach to horizontal and diagonal theories

from theoretical formulation to judicial applicability

Abstract

This article aims to analyze the existence of the effectiveness of fundamental rights under the focus of the theories Horizontal and Diagonal. The objectives are: to present the various positions on the incidence of fundamental rights in cases involving individuals at both ends, that is, both parties holding fundamental rights. In this sense, the most relevant points of the theoretical and practical discussions on the subject are presented. These issues are essentially about how fundamental rights relate to private relationships and to what extent. The problem of the present article is initially to check whether or not there is a horizontal effectiveness (here the question is pertinent) since the historical construction of private legal relations was based on the principle of autonomy of the will. Given the impact of fundamental rights, the following question arises: how can fundamental rights interfere in the legal relations of individuals? Remembering that it is necessary to expose the various theories. There are several positions adopted regarding the incidence of fundamental rights, the Diagonal theory represents one of these new positions, it presents itself as a new form of incidence and not as a problem of applicability. And in order to measure the problem of Diagonal efficacy, in addition to the study, a comparison with the horizontal efficacy, if any, is to be linked umbilically. In order to reach the answers, a research was done through the specialized bibliography following the descriptive-analytical method, which also instructed the analysis of jurisprudence. In order to reach an understanding, in addition to having done a critical-comparative analysis between the two theories, were presented cases in which diagonal theory applies theoretically, all in the labor field. By means of the methods used it was possible to understand the effective existence of horizontal efficacy, as well as that the Constitutional Courts predominantly adopt the direct applicability of said theory. It was also concluded that Diagonal efficacy is not properly a new theory of incidence, but rather of the applicability of horizontal theory. Furthermore, the importance of understanding such theories is emphasized in view of the conflicts of legal relations that will be solved from the scenario of the pandemic caused by Covid-19, especially contractual, consumer and labor relations.