The implications of the objective dimension of fundamental rights theory and the state protection duty (Schutzpflic ht) to Private law and its conformation by the German constitutional theory

Abstract

The objective dimension of fundamental rights, in addition to one of its main consequences, the notion of “State protection duty” (Schutzpflicht), appears as one of the most important theories developed after World War II, having been consolidated by German constitutional theory and jurisprudence, having strong impact on private law. In this sense, the present work intends to verify the implications of the objective dimension of fundamental rights and the “State protection duty” (Schutzpflicht) to private law, based on German literature and on the case law of the German Federal Constitutional Court, concluding that fundamental rights must be protected not only in State-individual relations, but also in relations between individuals (effectiveness), and it is a State duty to ensure their protection.