Rights of fraternity in the theory of fundamental rights generations

Abstract

The recognition of the legal status of the rights of fraternity demands its operationalization in the form of fundamental human right, present in the international and internal orders forwarded to the person. Thus fraternity can be deployed in the quadrant of generations or dimensions of fundamental rights.

The first generation rights require a non-action of the State (negative), arising from the principle of freedom. The implementation of second generation rights, derived from the principle of equality, is centered on state provision (right to benefit). The third generation rights, derived from the principle of fraternity, reside in a diffuse character, nonexistent in the previous normative structures (destiny of humanity, peace building, environment protection and conservation, economic development and consumer protection).

With the political and economic phenomenon of globalization, sound part of the doctrine starts to formulate for a fourth and even a fifth generation of fundamental rights, related to genetic manipulation and virtual reality, respectively.

In spite of the criticisms, there was an express acceptance, to some extent, of the generational system of fundamental rights in the jurisprudence of the Brazilian Supreme Court and Brazilian doctrine. The fraternity principle has gained evidence recently on the issue of migration, whether in Europe or in the Americas.

In short, fraternity is the point of balance between freedom and equality. Its horizon is the one that best fits with the effective protection of fundamental human rights, gaining universality before humanity and the human condition itself.

In Brazil, a constitutional promise compels us to treat the immigrant with dignity, aiming to raise a "fraternal, pluralistic and unprejudiced society".