The expression facultas agendi, of Latin origin, designates subjective right, understood as the power to act conferred upon a subject by the legal system for the satisfaction of their own interests. Inserted into the General Theory of Law, this faculty constitutes the core of private autonomy and the protection of individual legal positions against the State and third parties.
Concept and Foundation
In the spectrum of the General Theory of Law, the distinction between norma agendi (objective law) and facultas agendi (subjective right) is fundamental to understanding the legal structure. While norma agendi refers to the complex of norms that make up the legal system, facultas agendi embodies the power to act, that is, the power attributed to a subject of law to demand conduct from another, or from oneself, or to perform acts with recognized legal efficacy.
The legal nature of the institute lies in the subject's power of self-determination, guaranteed by the objective norm. A subjective right is not merely a power, but a legal protection of an interest, endowed with a claim (the possibility of demanding performance) and an action (the possibility of resorting to the jurisdictional apparatus in case of violation).
Historical Origin and Evolution
The dichotomy between objective and subjective law was consolidated in 19th-century Germanic doctrine, notably with Savigny's Historical School and the subsequent development by Rudolf von Jhering. Historically, Roman Law did not possess a technical terminology for "subjective right" as we conceive it today, focusing instead on the actio. The jusphilosophical evolution, passing through the rationalist natural law of Grotius and Locke, allowed for the transition of focus from the norm to the individual, elevating facultas agendi to the status of an essential attribute of legal personality.
Legal and Constitutional Provision
Facultas agendi finds direct support in the 1988 Federal Constitution (CF/88), notably in Art. 5, item II ("no one shall be obliged to do or refrain from doing anything except by virtue of law"), which delimits the scope of the subject's freedom. Within the scope of the 2002 Civil Code (CC/02), the exercise of the power to act is guided by Art. 187 (abuse of right), which imposes ethical and social limits on the exercise of subjective rights, and by Art. 1.228, which defines the right of ownership as a bundle of powers (to use, enjoy, dispose of, and recover).
Practical Application and Jurisprudence
The STF (Supreme Federal Court) and the STJ (Superior Court of Justice) have consolidated the understanding that facultas agendi is not absolute. In RE 586.825, the STF discussed the limits of private autonomy in the face of public order norms. Similarly, in the field of Labor Law, the TST (Superior Labor Court) constantly reaffirms that the power to hire or terminate contracts (the employer's power to act) finds insurmountable limits in social protection norms and the dignity of the human person (the principle of the social function of the contract).
Current jurisprudence has emphasized the "theory of abuse of right," where the exercise of a power, if devoid of social purpose or contrary to objective good faith, transforms into an illicit act, as established by Statement 532 of the VI Civil Law Conference (CJF).
Related Principles and Doctrinal Divergences
Facultas agendi is intrinsically related to the principle of autonomy of will and the principle of the dignity of the human person. Doctrinal divergences persist regarding the nature of subjective right: while the "will theory" (Savigny) understands it as a power of will, the "interest theory" (Jhering) maintains that it is a legally protected interest. Contemporary doctrine, led by authors such as Maria Helena Diniz and Miguel Reale, tends toward a synthesis that recognizes subjective right as an "interest protected by the norm through the attribution of a power of will."
Contemporary Relevance
In the current scenario, marked by the hyper-complexity of digital relations and the constitutionalization of Private Law, facultas agendi is constantly strained by ancillary duties, such as loyalty and cooperation. The practical relevance of the institute is manifested in the judicial control of contractual clauses and in the protection of personal data (LGPD), where the exercise of the power to dispose of personal information is limited by the fundamental right to informational self-determination.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Art. 5, II.
- BRAZIL. Law No. 10.406, of January 10, 2002. Establishes the Civil Code. Arts. 187, 421, and 1.228.
- BRAZIL. Supreme Federal Court. Extraordinary Appeal (RE) 586.825. Rapporteur Justice Eros Grau.
- FEDERAL JUSTICE COUNCIL (CJF). Statement 532 of the VI Civil Law Conference.
- REALE, Miguel. Preliminary Lessons of Law. 27th ed. São Paulo: Saraiva, 2002.
