From the Horizontal to the Diagonal Effect of Fundamental Rights within the Employment Contract: A Latin American Perspective
| Autor | Sergio Gamonal C. |
| Cargo | Universidad Adolfo Ibáñez, Santiago, Chile |
| Páginas | 165-192 |
LATIN AMERICAN LEGAL STUDIES Volume 3 (2018), pp. 163-192
FROM THE HORIZONTAL TO THE DIAGONAL
EFFECT OF FUNDAMENTAL RIGHTS WITHIN THE
EMPLOYMENT CONTRACT: A LATIN AMERICAN
PERSPECTIVE
Sergio gamonal C.*1
“BEEN THERE DONE THAT
I’ve even been a corpse for pay
One time they told me to hit the ground
And I, who am that I am, I obeyed
They covered me up with some newspapers
& went about their business lming a scene
For their motion picture”.
niCanor Parra**
Abstract
This work explains the development of the direct applicability
of fundamental rights in labor matters in some Latin American
countries, where courts and legal doctrine postulate the validity
of these rights as limits to the power of the employer. This appli-
cability, commonly known as “horizontal effect” of fundamental
rights between private individuals, is especially important in the
eld of labor law, as opposed to other areas of private law. Firstly,
because contrary to what has been postulated by the constitu-
tional narrative, this applicability originated within labor law at
the beginning of the twentieth century, and secondly, because,
with regard to labor law, this applicability does not increases judi-
cial discretion, but, on the contrary, endeavors to limit corporate
discretion. Consequently, by recognizing the particularisms of
labor law, we will postulate that we are dealing with a diagonal,
rather than a horizontal, effect of fundamental rights.
Keywords: Fundamental rights, horizontal effect, validity, labor, discretion.
*1 Universidad Adolfo Ibáñez, Santiago, Chile (sergio.gamona l@uai.cl). Web: www.glosalaboral.cl.
Article received on March 6, 2018 and accepted for publication on June 27, 2018. Translated by
Mauricio Reyes.
** Nicanor Parra, “Been there done that”, in Antipoems. How to look better & feel great, antitranslation by
Liz Werner, Bilingual edition, New York, A New Directions Books, 2004, p. 69.
Sergio Gamonal C.
166
LATIN AMERICAN LEGAL STUDIES Volume 3 (2018)
INTRODUCTION
The European, as well as the Latin American constitutional theory usually
touch upon the Lüth case from 1958, ruled by the German Constitutional Court,1
as the landmark case of the so called horizontal effect, validity of applicability,2 of
fundamental rights between private individuals.
Since then, this effect has been developing to the extent that it is currently difcult
to refuse that fundamental rights have some legal effect between private individuals.3
This applicability has been very well received in the area of labor law, giving
place to a sort of “second constitutionalization” of this area of law. As a matter of
fact, labor law has been enriched thanks to constitutional law, as a consequence of
the enshrining of social rights in the Mexican Constitution from 1917, followed by
the Weimar Constitution enacted in 1919. And, at present, it has been improved
again due to the horizontal effect of fundamental rights, now more focused on those
of individual, civil and political character.4
1 Fedtke (2007), pp. 127 and ff.
2 Peces Barba has argued that we should talk about “validity” rather than “effect” of fundamental
rights. Validity, understood as to what relationships fundamental rights apply, unlike effect understood
in its procedural sense, that is to say, by way of what mechanism such validity is protected, for
instance, through the writ of constitutional protection (amparo). This author emphasizes that the
word “effect” has gained popularity due to a bad translation from the original German. See PeCeS-
BarBa martínez (1999), pp. 618 and 635 and ff.
Regarding this subject matter, we nd other denominations. For example, Palomeque speaks of
“unspecied labour rights”, meaning that there are fundamental rights of specic labour nature
(such as the right to work, weekly rest, and fair salary), as well as other fundamental rights that
are not specically labour in nature, such as wide range civil and political rights, which also are
applicable within the employment contract, as it is the case with the rights to intimacy, self-image
and freedom of expression. So, they are not classical labour rights of economic and social character,
but rather civil and political rights and therefore unspecic from the perspective of labour law. See
Palomeque lóPez (1991), pp. 31 and ff.
Ghezzi and Romagnoli indicate that in labour matters, fundamental liberties have a “polyvalent sense
or applicability”, since fundamental rights linked to freedom are to be applied to relationships
with employers, as well as with the state. Because, these authors ask: what good is it to protect the
fundamental liberties of workers against “the big state” if they can be violated with impunity by the
“small state” that is the factory? See ghezzi and romagnoli (1987), p. 15 f.
Couturier, Rivero and Savatier speak of “citizenship in the company”, meaning that the worker does
not lose citizenship when joining the company, carrying with him or her to some extent of his or
her civil rights into that hierarchical organisation that we know as a company. See Couturier
(1996), pp. 358ff. It is obvious that the term « citizenship » does not refer to political citizenship, but
possesses a broader meaning, which means that the labour concept of citizenship in the company
also applies to non-citizens, for instance to immigrants. See gamonal C. (2004), p. 14, footnote 11.
In this article we will use the terms effect, validity and applicability as synonyms. Beyond the diverse
meanings, in the area of labour law in Latin America, when the term “horizontal effect” is used, it
is understood that it refers to applicability or validity. There is no such thing as an essentialism or a
xed and immutable meaning of the words. We are in agreement with Carrió, when he argues that
“the meaning of the words depends on the language context in which they appear and the human
situation in which they are used”. See Carrió (1994), p. 29.
3
aSíS roig (2004), p. 9.
4
BayloS (1991), pp. 95-99.
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