Aplicabilidade das Normas Constitucionais - Parte 2 | Direito Constitucional | Adriane Fauth

Summary

This video script delves into the classification of constitutional norms, focusing on their effectiveness in different contexts. It explores the concept of full, limited, and contained efficacy, with examples drawn from Brazil's Constitution. The script discusses the relationship between constitutional norms and laws, as well as the social function of property rights and state powers. It also touches on the horizontal, vertical, and diagonal application of fundamental rights, highlighting the importance of context in understanding these legal principles. The explanation provides a detailed and approachable breakdown of complex constitutional concepts.

Takeaways

• 😀 Norms of constitutional effectiveness are classified into three categories: full, contained, and limited. Full and contained norms are self-applicable, while limited norms require external regulation.
• 😀 Contained norms may have their effects reduced by constitutional amendments, laws, or legal concepts, such as during emergencies or public safety threats.
• 😀 Limited norms require additional legislation or regulation to be fully effective, like the establishment of ministries or new states, as prescribed in the constitution.
• 😀 Programmatic norms are directives for the state to implement certain objectives, such as protecting workers' rights or promoting consumer defense, often requiring laws or policies to give them effect.
• 😀 Norms of 'absolute effectiveness' refer to 'cláusulas pétreas' (petrified clauses) that cannot be altered through constitutional amendments, ensuring fundamental rights' permanence.
• 😀 The dimension of constitutional rights can be seen from two perspectives: subjective (individual’s perspective) and objective (state's perspective), affecting how these rights are applied and protected.
• 😀 The 'irradiant effectiveness' of fundamental rights means that these rights have a broad impact across the legal system and constrain all branches of the state (executive, legislative, judicial).
• 😀 Gelin's concept of four 'statuses' explains how individuals interact with the state: negative (demanding non-interference), positive (demanding action), active (exercising political rights), and passive (observing legal duties).
• 😀 Vertical efficacy refers to the application of rights between individuals and the state, ensuring that the state does not violate individual freedoms.
• 😀 Horizontal and diagonal efficacy explain how fundamental rights apply in relations between private individuals, with horizontal efficacy in equal relationships and diagonal efficacy in unequal ones, like employer-employee or consumer-supplier.

Q & A

What are the main types of constitutional norms based on their social effectiveness?

The main types of constitutional norms based on their social effectiveness are: 'norms of full effectiveness', 'norms of contained effectiveness', and 'norms of limited effectiveness'. The full and contained norms are auto-implementing, while the limited norms require further action, such as regulation, to be effective.

What differentiates a 'norm of full effectiveness' from a 'norm of contained effectiveness'?

A 'norm of full effectiveness' is auto-applicable and immediately produces legal effects. In contrast, a 'norm of contained effectiveness' may have its effects reduced by a law or other normative instrument, even though it is still auto-applicable.

How can the effectiveness of a constitutional norm be contained?

The effectiveness of a constitutional norm can be contained through three instruments: by the constitution itself (e.g., limiting rights during states of emergency), by laws (e.g., restrictions on professional exercise), or by indeterminate legal concepts (e.g., 'social function of property').

What is a 'norm of limited effectiveness' and what are its types?

A 'norm of limited effectiveness' is a constitutional norm that requires regulation or further legislative action to produce social effects. It can be categorized into two types: 'institutional or organizational principles' (e.g., creation of ministries) and 'programmatic norms' (e.g., objectives like the protection of workers' rights).

What are programmatic norms and how do they function?

Programmatic norms are constitutional provisions that establish goals for the state to achieve, such as ensuring consumer protection or social justice. These norms do not mandate immediate action but set guidelines for future implementation through laws and public policies.

What is meant by 'absolute efficacy' in constitutional norms?

Absolute efficacy refers to 'cláusulas pétreas' (immutable clauses), which are constitutional norms that cannot be altered or abolished by amendments. These norms are considered to have absolute legal protection.

What is the concept of 'horizontal efficacy' of fundamental rights?

Horizontal efficacy refers to the application of fundamental rights not only between the state and individuals (vertical), but also between individuals in private relationships, such as in consumer or labor relations. It ensures that these rights are respected in interactions between private parties.

How does 'vertical efficacy' differ from 'horizontal efficacy'?

Vertical efficacy refers to the application of fundamental rights in the relationship between the state and the individual, where the state cannot infringe upon those rights. Horizontal efficacy refers to the application of fundamental rights in interactions between private parties, ensuring that individuals respect each other's rights.

What does 'diagonal efficacy' of fundamental rights mean?

Diagonal efficacy refers to the application of fundamental rights in situations where private parties are in unequal positions, such as employer-employee relationships. It acknowledges the need to protect individual rights even when there is a power imbalance between the parties.

What are the 'four statuses' described by Gelin regarding individual interaction with the state?

Gelin's 'four statuses' describe how individuals interact with the state: (1) Negative status (demanding the state not to act), (2) Positive status (demanding the state to act), (3) Active status (exercising political rights), and (4) Passive status (fulfilling duties, such as voting or obeying laws).