A EFICÁCIA IRRADIANTE DOS DIREITOS FUNDAMENTAIS NAS RELAÇÕES ENTRE PARTICULARES: UMA ABORDAGEM CONTEMPORÂNEA E HORIZONTAL DOS DIREITOS E GARANTIAS FUNDAMENTAIS NA CONSTITUIÇÃO DE 1998.

Abstract

Fundamental rights and guarantees were initially enforceable only in relationships involving the State, according to classical liberal doctrine. These rights were conceived as limitations on State power in situations of violence and threats against individuals. In contrast, it was traditionally assumed that private legal relationships did not require such protection, based on the idea of equal standing and the absence of dominance between the parties. However, this view is now considered outdated and simplistic, as oppression and violence are not confined to relationships involving the State.

With the advent of bourgeois liberal constitutionalism, the exclusively vertical application of fundamental rights was overcome, allowing for their application in horizontal relationships between individuals. It is now recognized that in employment, civil society, family, and other contexts, there are dynamics of oppression and abuse that also demand protection. This calls for a rethinking of the role of private actors, as freedom and autonomy of will, in certain circumstances, can be negatively affected by other private parties, thereby undermining these very principles.

Accordingly, this research aims to break away from the traditional view that only the State poses a threat to individual freedom, advocating instead for greater attention to the application of fundamental human rights principles in private relations. The study adopts a deductive, descriptive, and qualitative methodology, employing bibliographic, doctrinal, and jurisprudential sources. It seeks to analyze the theories of human rights and fundamental rights and guarantees, and subsequently examine the main theories addressing the subject, as well as how fundamental rights and guarantees are enforced under the 1988 Constitution of the Federative Republic of Brazil.