A realização da dignidade humana no Direito Civil brasileiro: neconstitucionalismo teórico e eficácia dos direitos fundamentais

Abstract

How can the principle of human dignity in Brazilian Civil Law be implemented to the greatest possible extent and within the existing legal and factual conditions? This is the question to be answered. The relationship between Private Law and the Constitution is the background of the work that is divided into three main parts. In the first, the proposal for a theoretical neoconstitutionalism based on Max Möller’s theory will be analyzed. In the second moment, the study of the philosophical and legal foundations of human dignity will be carried out, and then the delimitation of the relationship between Private law and the Constitution will be carried out through two distinct streams of Civil Law, represented by Perlingieri and his followers in Brazil (first school) and Otavio Luiz Rodrigues Junior following the line of thought of Konrad Hesse (second school). Finally, in the third moment, the hypothesis of the realization of human dignity in Civil Law will be tested through the two theories of (direct and indirect) effectiveness of fundamental rights in relations between individuals. We will try to demonstrate the argument of the hypothesis through the structure of the hypothetical-deductive method, starting from the problematization to the conclusion through the debate of the theories, the favorable and opposite arguments and the implications.