BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

On the other hand, Sarlet 20 defends an immediate applicability to all fundamental rights, not only to those who make up the Constitution’s role, highlighting its principiological character, as an “optimization warrant”, a concept that originates in the distinction between rules and principles formulated by Alexy 21 in his work Theory of Constitutional Rights. According to the classic distinction made by Silva, 22 the validity, validity (legitimacy) and effectiveness of the standard constitute a general condition of applicability of the constitutional norms, due to what must be the norm, be valid and effective in the legal order to be applicable. The jurist sees applicability and effectiveness as very close expressions, with applicability being conditioned to effectiveness, as well as the inverse premise. At another vertex, Barroso 23 conceives of effectiveness as a fourth plane of norms, hitherto little explored, considering existence (or validity), validity, and efficacy. From this argumentative line, one has that the effectiveness of the norm differs in the legal and social planes. In Sarlet’s lesson, 24 legal effectiveness includes the ability of the norm to have effects in the legal world, constituting a presupposition for the social effectiveness of the norm, which houses the effective implementation of the normative program. In this line of thinking, in order to be effective in the concrete dimension, the norm must be capable of producing legal effects. Silva, 25 on the other hand, faces the controversial distinction between efficacy and effectiveness, asserting that legal efficacy is directly related to the elements that make up the general condition of applicability, that concretizes the effectiveness, while social effectiveness comprises the realization, albeit partial, of the objectives set forth by norm. From the examination of the problem of effectiveness from the species of fundamental rights, it is undeniable that the plan for the effectiveness of the negative rights would 21 Acording to Alexy (2015, pp. 90-91).”The decisive point in the distinction between rules and principles is that principles are norms that order something to be done to the greatest extent possible within existing legal and factual possibilities. Principles are, therefore, commandments of optimization, which are characterized by being satisfied to varying degrees and by the fact that the due measure of their satisfaction depends not only on factual possibilities, but also on legal possibilities. The scope of legal possibilities is determined by colliding principles and rules. Rules are rules that are always either satisfied or not satisfied. If a rule holds true then one must do exactly what it requires; neither more nor less. Rules therefore contain determinations within the scope of what is factually and legally possible. This means that the distinction between rules and principles is a qualitative distinction, not a distinction of degree. Every rule is either a rule or a principle.” 22 SILVA, J. A. da.: Aplicabilidade das normas constitucionais . 7th edition, 2nd print run. São Paulo: Malheiros, 2003, p. 52. 23 BARROSO, L. R.: Curso de Direito Constitucional Contemporâneo: os conceitos fundamentais e a construção do novo modelo. 5th edition. São Paulo: Saraiva, 2015, p. 255. 24 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. 248. 25 According to SILVA, J. A. da.: Aplicabilidade das normas constitucionais. 7th. edition 2nd. print run. São Paulo: Malheiros, 2003, p. 66. 20 SARLET, I. W.: A eficácia dos direitos fundamentais: uma teoria geral dos direitos fundamentais na perspectiva constitucional. 12nd. edition Revised, updated and expanded. Porto Alegre: Livraria do Advogado Ed., 2015, p. 278.

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