Restrictions on fundamental rights: an interpretation in the light of Friedrich Müller´s structural theory of law
| Autor | Débora Dossiatti de Lima - Nestor Castilho Gomes |
| Páginas | 1992-2001 |
1992 • XXVI World Congress of Philosophy of Law and Social Philosophy
Restrictions on fundamental rights:
An interpretation in the light of Friedrich
Müller´s structural theory of law
DéboraDossiaideLima
Nestor Castilho Gomes
Abstract: This article aims to analyze the possibility of restrictions to funda-
mental rights. Firstly, it is important to clarify that, from the theoretical view-
point, the very validity of the idea of restrictions to fundamental rights is con-
troversial, for it depends on a certain conception of legal norm. One theory of
the norm founded on the distinction between rules and principles, as the one
formulated by Robert Alexy, eventually leads to the acceptance of restrictness of
fundamental rights. On the other end, one norm theory that refutes principiol-
ogyasthe onedevelopedby FriedrichMüllernecessarily impliesaneort to
denethematerialextensionoffundamentalrightandnotitsrestriction
Keywords: fundamental rights, Friedrich Muller´s structural theory of law.
The restrictness of fundamental rights depends on a concep-
tion of norm that sees the fundamental rights as denite or prima facie
positions. It is in the scope of norm theory that stands the controversy
aroundthescopeof protectionThedenitionofscopeofprotectionof
fundamental rights has a direct relation with the concept of restriction or
determination of the contents of fundamental rights. These two variations
are translated when overlapping “wide scope of protection vs. restricted
scope of protection”. While Alexy supports the wide scope of protection,
which relates to that which the norm of fundamental right guarantees
prima facie, that is, without taking into account the possible restrictions,
Müller defends that the interpretation of norm programand thedeni-
tion of norm scopewouldsuceinordertodeneatthesametimethe
contents and the limits of each fundamental right in each concrete case.
The questions that arise here are not purely theoretical, void of
anypracticalrepercussionThenormtheoryinuencestheformofap-
plication of fundamental rights: subsumption, Abwägung, embodiment,
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