NOTAS A LA APLICACIÓN DE LOS DERECHOS FUNDAMENTALES EN LAS RELACIONES PRIVADAS.

Abstract

Both constitutional law and private law have progressed, and in the process of their doing so the relationship between constitutional law and private law has become stronger, within an equilibrium of complementariness, without destroying private law or enfeebling constitutional law. Constitutions are no longer run-of-the-mill bodies of law, but have become instead the highest fundamental law of their respective states. Constitutions, as the rules they are, have taken on direct applicability, serve as the parameter for court decisions and are highly important for the life of the community and for private law, both of which do service as vehicles for the advancement of their country's constitution. But private law has also been profoundly transformed. The interests of large, economically dependent, non-autonomous majorities have changed the ideas of bourgeois society that underlay the nineteenth century's codes. This change has triggered the rise of the socialisation of law, weakening the fundamental classical concepts, including the autonomy of will, which has now been recast. Civil law implements a social ethos in which responsibility belongs not only to the public authorities, but also to the community. Thus private law is also responsible for the defence of the weak. It heeds the call of social justice. It is protective in nature and stands against abuse. One example is Brazil's 2002 Civil Code, whose steps forward include the establishment of the social function of contracts. This paper attempts to explain briefly the application of constitutional provisions in private relations through the two known theses of the direct application of constitutional provisions and the indirect application of constitutional provisions, the contributions made by each, their differences, their agreements and their importance in contemporary law. The recognition of the Drittwirkung by the Inter-American Court of Human Rights and the European Court of Human Rights is also briefly analysed.