The book is an adaptation of part of the author's PhD thesis, which won the international prize Prémio FIBE, and was voted one of the three best in Brazil, in the field of Law, in 2023. It addresses the appropriation of the private law notion of abuse of rights by the theory of fundamental rights. It also presents guidelines for an appropriate use of the discourse of abuse of fundamental rights (highly dependent on a Dogmatics of scope, approached according to a model of groups of cases).

Fabio Carvalho de Alvarenga Peixoto

PhD in Constitutional Law (Universidade de Fortaleza - Brazil). State Attorney. Private lawyer. Winner of the international prize Prémio FIBE, and of an honorable mention in the Capes (Brazilian Ministry of Education) PhD Thesis Award 2023.

INTRODUCTION

1 THE GENERAL NOTION OF ABUSE OF FUNDAMENTAL RIGHTS

1.1 Admission by Literature of the Abuse of Fundamental Rights

1.1.1 Unconscious phase

1.1.2 Constructive Phase of Incipient Dogmatization

1.1.3 Constructive Phase of Peripheral Systematization

1.2 Delimitation of the Abuse of Fundamental Rights in the Face of the Verwirkung of Fundamental Rights

1.3 Presuppositions of the Notion of Abuse of Fundamental Rights

1.3.1 Fundamental Right Permission Granted by ‘Abstract’ Interpretation of the Constitutional (or with Constitutional Status) Text or of a Judicial Decision Interpreting the Constitution

1.3.2 Prohibition ‘Discovered’ by Judge, Outside the Limits of ‘Abstract’ Interpretation of the Normative Text

2 FROM PRIVATE LAW DOCTRINES OF ABUSE OF RIGHTS TO A THEORY OF ABUSE OF FUNDAMENTAL RIGHTS

2.1 The Effectiveness of Fundamental Rights Between Private Individuals (Drittwirkung) as a Bridge Between Private Law Doctrines of Abuse of Rights and the Theory of Fundamental Rights

2.2 Problems of Using the Approaches of the Private Law Doctrines of Abuse of Rights in the Theory of Fundamental Rights

2.2.1 The Problem of the Controllability of State Interventions in Fundamental Rights

2.2.1.1 Creation of Law Outside the Limits of the Normative Text

2.2.1.2 Lack of Control Parameters of the Definitory Approaches

2.2.2 The Problem of the Risk of Eliminating the Individual Function of the Fundamental Right

2.2.3 The Problem of the Confusion with the Dogmatics of the Limits of Fundamental Rights

2.2.3.1 Dogmatic Autonomy of Abuse of Fundamental Rights vis-à-vis the Doctrines of Limits of Fundamental Rights

2.2.3.2 The Relation Between Abuse of Fundamental Rights and Dogmatic Conceptions of the Broadness of the Tatbestände of Fundamental Rights

3 CONTROL OF THE RATIONALITY OF THE DISCOURSE OF ABUSE OF FUNDAMENTAL RIGHTS AS A JUSTIFICATORY “SHORTCUT”

3.1 Needless for a Constitutional General Clause to Restrain Abuse of Fundamental Rights

3.2 The Need for a Singular Dogmatics

3.3 Identification of the Abuse of Fundamental Rights as a Task of Peripheral Systematization Grounded on Concrete Evaluations

4 UNACCEPTABLE APPROACHES TO THE ABUSE OF FUNDAMENTAL RIGHTS

4.1 Abuse of Fundamental Rights Without Parameters

4.2 Abuse of Fundamental Rights as Inadmissible Form of Exercise

4.3 Abuse of Fundamental Rights as Synonym for Exceeding a Limit

4.4 Abuse of Fundamental Rights as Typical Unlawfulness

4.5 Abuse of Fundamental Rights as Fraud Against the Law

4.6 Abuse of Fundamental Rights as Unreasonableness

4.7 Abuse of Fundamental Rights as Result of Alexyan Balancing

4.8 Abuse of Fundamental Rights as Disproportionality (Abuse of Fundamental Rights as Result of Means-End Balancing)

5 ACCEPTABLE APPROACHES TO THE ABUSE OF FUNDAMENTAL RIGHTS

5.1 Inadmissible Harmful Intent

5.2 Dogmatization of the Normative Scope

5.2.1 Direct Dogmatization

5.2.2 Indirect Dogmatization

5.3 Violation of Objective Good Faith

5.4 Violation of Good Customs

6 GROUPS OF ABUSE OF FUNDAMENTAL RIGHTS CASES AS LIMITS OF THE LIMITS

CONCLUSION