CONSTITUTIONALIZATION OF LAW AND THE RADIATING EFFECT OF FUNDAMENTAL RIGHTS OVER THE BRAZILIAN LEGAL ORDER

Abstract

This article analyzes the constitutionalization of Brazilian law as a process of material and graduated radiation of fundamental rights over the branches of the legal order, rather than as a mere formal normative hierarchy. The problem guiding the investigation is why the application of fundamental rights remains fragmented across legal fields, even after the consolidation of the paradigm inaugurated by the 1988 Constitution. The central objective is to propose a hermeneutic model of graduated radiation, capable of guiding the incidence of fundamental rights in both vertical and horizontal relations, based on two objective criteria, the degree of power asymmetry between the subjects and the scope of private autonomy at stake. Regarding method, the research is qualitative, descriptive and bibliographical, combined with documentary analysis of Federal Supreme Court precedents, covering the period from 2016 to 2026 and including earlier seminal works due to their theoretical relevance. The results show that national legal scholarship has developed, under the label of diagonal efficacy, intuitions that converge with the proposed model, and that the Supreme Court already decides, implicitly, by calibrating the intensity of protection according to the inequality between the parties. It is concluded that systematizing these criteria grants predictability to the application of fundamental rights and overcomes the dichotomy between direct and indirect efficacy, offering a cross-cutting foundation for any legal field.