SEPARAÇÃO DE PODERES E AS TEORIAS INTERNA E EXTERNA DOS DIREITOS FUNDAMENTAIS: DIREITOS SOCIAIS E A INAPLICABILIDADE DA TEORIA EXTERNA

Abstract

Five are the vectors that were considered in the development of this paper: a) the necessary treatment of distinction to be given to the fundamental rights conferred by the classic freedoms on the one hand and, on the other hand, the fundamental rights of second dimension; b) the assumption that there are no absolute fundamental rights; c) make sure that the interpretation of the rule must meet the scientific criteria, including the establishment of the final rule in the case of collision of fundamental rights principles; d) a constitutional obligation to prevent the abuse of rights; e) and, finally, it is necessary always to protect the separation of government powers within the parameters set in our Charter. Analyzed the content and relevance in our legal system of internal and external theories of restrictions on fundamental rights (first and second dimension), and described its limits, one comes to the conclusion that seems more appropriate to use the external theory to allow the application of restriction on freedoms and that makes more sense to use the internal theory to identify the limits to social fundamental rights. Finally, it appears that both the restriction as in the identification of limits of fundamental rights it is necessary to satisfy the requirements of legality, proportionality and the prohibition of the caseby-case decisions.