Private autonomy and legal limitations: Reflection of the indirect incidence of fundamental rights

Abstract

In contemporary constitutionalism the limits between Public Law and Private Law have become increasingly close. Nowadays, Public and Private Law interrelate themselves and create intersection points in which it is possible to notice their influence. In this Considering the importance of this subject, this paper investigates the status and potential application of private autonomy in Brazilian law, within the insertion of Public Law in Private Law, especially considering the indirect effectiveness of fundamental rights in private relations, which causes the influence of the public interest over private institutes. By using the hypothetical-deductive method and bibliographical research technique we demonstrate that private autonomy, in this proposed context, undergoes changes in its concept and, consequently, causes several limitations to the power available to private individuals for self-regulation of their private affairs. These limitations arise due to the care of social interests and result in the indirect incidence of fundamental rights in relationship between individuals, i.e., with the intermediation of the legislator, that at the time of creation of the law must balance the fundamental rights with other interests, especially with private autonomy. This can still happen from the use of indeterminate principles, which open space for the Judiciary to apply the fundamental rights in the private relations, according to each specific case by constitutional interpretation.

Keywords: private autonomy, contemporary constitutionalism, fundamental rights, public law, private law.