Fundamental Rights and Relations Between Private Parties

Abstract

The article analyzes the effectiveness of fundamental rights in relations between private parties, with the aim of examining whether, in addition to the State, private actors are also bound by these rights and to what extent this occurs. It adopts a legal-doctrinal and comparative methodology based on the examination of constitutional scholarship developed mainly in the German, American, Portuguese, and Spanish legal systems, as well as on reflection concerning the Brazilian legal order. It shows that the classical conception of fundamental rights as defensive rights solely against state power has become insufficient in light of the social redistribution of power and the emergence of private relations marked by material inequality. The article presents the main theoretical approaches to the issue, especially the theories of immediate and mediated effectiveness of fundamental rights between private parties, and argues that the solution should not be uniform, requiring a distinction between horizontal private relations among equals and asymmetrical private relations in which one party exercises special power over the other. It concludes that fundamental rights radiate effects throughout the entire legal system and must also apply to private relations, whether indirectly through general clauses and indeterminate concepts of private law or more directly in situations of substantive inequality, while preserving human dignity in balance with private autonomy and contractual freedom.