BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

principle of the indivisibility and interdependence of fundamental rights, and divorce of the rights of freedom of equality rights was unreasonable. In the Theory of Fundamental Rights, Alexy 11 starts from the principle of subjective right as a supra-concept for distinct legal positions and uses the classification proposed by Jeremy Bentham to define the positions as rights to something, liberties and competences. It deals with the subjective right to something, in which there is a triadic relationship between the holder of the right, the bearer and the object of the action, which is always about an action of the recipient, whether positive or negative. Thus, in his lesson, from the object of law it is possible to categorize the fundamental rights in fundamental rights to negative actions and fundamental rights to positive actions towards the State. According to this theory, 12 rights to negative actions, or rights of defense, can be classified as “rights to non-embarrassment of actions”, “rights not to affect characteristics and situations” and “rights to non-elimination of legal positions” (or rights in themselves). As for the first group, “rights to non-embarrassment of actions”, includes the rights that the State does not hinder or prevent actions of the right holders. The second group, “rights not to affect characteristics and situations”, contains rights to not change the characteristics and situations of the right holder. Finally, as regards the third group, “rights to the non-elimination of legal positions”, it includes rights that the State does not eliminate legal positions of the holder of the right. At another vertex, the rights to positive state actions, in the Alexyan theory, comprise positive actions (or rights to benefits in the strict sense) and positive normative actions (rights to benefits in a broad sense, rights to which the State creates norms). The classification developed by Sarlet 13 follows the theory of Robert Alexy. For the former, one could speak of fundamental rights of defense and fundamental rights to benefits and, in a second subdivision, fundamental rights to benefits in a broad sense and fundamental rights to benefits in the strict sense. The classification of the scope of the protection of the rights commonly called civil and social rights is taken from this classification. In the case of these, in particular, these are rights whose legal positions may have a positive and / or negative character, so that in the internal constitutional order, the catalog of social rights of the Federal Constitution 14 holds legal positions of benefit and defense, being, therefore, heterogeneous. It is worth here to record the concept of rights to benefits in the strict sense of the Alexy’s theory: “[t]he rights of the individual, in the face of the State, to something that 11 ALEXY, R.: Teoria dos Direitos Fundamentais. 2nd edition 4th print run. Translated by Virgílio Afonso da Silva from 5th German edition. São Paulo: Malheiros, 2015, p. 195-196. 12 ALEXY, R.: Teoria dos Direitos Fundamentais. 2nd edition 4th print run. Translated by Virgílio Afonso da Silva from 5th German edition. São Paulo: Malheiros, 2015, p. 196. 13 SARLET, I. W.: A eficácia dos direitos fundamentais: uma teoria geral dos direitos fundamentais na perspectiva constitucional. 12. edition revised, updated and expanded. Porto Alegre: Livraria do Advogado Ed., 2015, p. 174. 14 See article 6 of 1988’s Brazilian Federal Constitution, updated by the 26th/2000, 64th/2010 e 90th/2015 amendments: “Art. 6 –The following are social rights: education, health, food, work, housing, transportation, leisure, security, social security, maternity and child protection, assistance to the homeless, in the form of this Constitution.”

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