From the Horizontal to the Diagonal Effect of Fundamental Rights within the Employment Contract: A Latin American Perspective

Sergio Gamonal C

doi:10.15691/0719-9112vol3a1

Abstract

This work explains the development of the direct applicability of fundamental rights in labor matters in some Latin American countries, where courts and legal doctrine postulate the validity of these rights as limits to the power of the employer. This applicability, commonly known as “horizontal effect” of fundamental rights between private individuals, is especially important in the field of labor law, as opposed to other areas of private law. Firstly, because contrary to what has been postulated by the constitutional narrative, this applicability originated within labor law at the beginning of the twentieth century, and secondly, because, with regard to labor law, this applicability does not increases judicial discretion, but, on the contrary, endeavors to limit corporate discretion. Consequently, by recognizing the particularisms of labor law, we will postulate that we are dealing with a diagonal, rather than a horizontal, effect of fundamental rights.

Highlights

The European, as well as the Latin American constitutional theory usually touch upon the Lüth case from 1958, ruled by the German Constitutional Court,[1] as the landmark case of the so called horizontal effect, validity of applicability,[2] of fundamental rights between private individuals.Since this effect has been developing to the extent that it is currently difficult to refuse that fundamental rights have some legal effect between private individuals.[3]This applicability has been very well received in the area of labor law, giving place to a sort of “second constitutionalization” of this area of law
This work explains the development of the direct applicability of fundamental rights in labor matters in some Latin American countries, where courts and legal doctrine postulate the validity of these rights as limits to the power of the employer
It is no exaggeration to argue that the process described here was a “laborization” of constitutional law.[17]. Why has this origin remained concealed or little discussed in legal doctrine? This provisions have probably been more commented by labor scholars than by constitutionalists, and the former focused on the great relevance that the mentioned provisions had on social and economic improvements on the situation of workers, rather than on constitutional technicalities that at the time might have been irrelevant for labor lawyers, if we focus on the major symbolic impact that this constitutionalization had in favor of labor law.[18]

Summary

INTRODUCTION

The European, as well as the Latin American constitutional theory usually touch upon the Lüth case from 1958, ruled by the German Constitutional Court,[1] as the landmark case of the so called horizontal effect, validity of applicability,[2] of fundamental rights between private individuals. Legal scholarship indicates that there are different levels of state obligations concerning fundamental rights (civil, political, economic, social and cultural), namely: respect, the state must not interfere with the exercise of such rights; protection, governments are to prevent third parties from infringing the rights of others; guarantee, in certain cases, the state is to undertake concrete measures of actions in order to ensure the exercise of the right; and promotion, which is the adoption of long term measures which allow the full enjoyment of the corresponding right.[9] So regarding fundamental labor rights, the employer, even though it may be a private person, has the obligation to respect (of weekly rest, vacations, minimum wage, etc.), to prevent

THE HORIZONTAL EFFECT IN LATIN AMERICA

TOWARDS THE DIAGONAL EFFECT IN LABOR LAW

CONCLUSIONS