BASIC LABOR RIGHTS: THEORETICAL PERSPECTIVES IN BRAZIL AND GERMANY

• Autor(a) principal: Moraes, Camila Miranda de
• Data de Publicação: 2017
• Outros Autores: Martins, Adalberto
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista Jurídica Cesumar - Mestrado (Online)
• Texto Completo: https://periodicos.unicesumar.edu.br/index.php/revjuridica/article/view/5607
• topic: Effectiveness; Applicability; Labor rights.; Efectividad; Aplicabilidad; Derechos laborales.; Efetividade; Aplicabilidade; Direitos trabalhistas.

Current paper deals with the theory of basic rights on constitutional norms in labor rights in Brazil and Germany. A brief analysis of validity, duration and efficiency of the juridical norm is provided. The Constitution´s normative strength is not merely derived from juridical norms but also from the possibility of exercise and fruition of what lies in these norms. The efficaciousness of basic rights is focused from the perspective of German ideology proposed by Andreas Joachim Krell, Ernst Forsthoff and Ernst-Wolfgang Böckenförde. Forsthoff and Böckenförde state that basic rights do not have immediate applicability and one should analyze the hypothesis of applying basic rights case by case. This is due to the fact that fundamental rights would require graduation and differentiation for each individual case. The Theory of Possible Reserve was employed in Germany at the High Court of the Federal Republic of Germany which acknowledged problems in the structure of social basic rights and limited the fruition of social basic rights according to the possibility that the State can guarantee the required budget for their costs and fruition. The above theory may not be employed in Brazil since, according to Andreas Joachim Krell, Portuguese doctrine used the German theories of rights and several Brazilian lawyers merely transposed these theories (as possible reserve and existential minimum) to Brazilian law. Krell condemns this practice since it fails to comply with the true precepts of comparative law. He shows that the decision of the German courts may not be simply transposed to Brazil due to the latter being totally different from Germany and due to the differences in the judicial system of both countries. There is a flagrant incompatibility in the application of the thesis in Brazilian courts.