1.5. LEGAL NATURE

The issue of the legal nature of Labor Law still provokes heated debates today. It should be noted that the very dichotomy of Law, public and private, is already a source of heated discussions after the definition presented by Ulpiano, according to which publicum ius est quod ad statum rei romanae spectato, privatum quod ad singulorum utilitatem.

By legal nature of Labor Law, we mean its placement in one of the aforementioned groups. It is important to note, however, that the legal nature of a particular branch of Law varies according to the time and political power organization adopted by each State.

Although Labor Law is mostly made up of rules of public interest, such a characteristic does not imply the recognition of the public nature of the said branch of Law.

The thesis of recognizing the public nature of Labor Law does not withstand a deeper analysis. Family Law, for example, despite being guided by various rules of public order, has never lost its character as Private Law.

Amauri Mascaro attributes the division of Law into public and private to a merely ideological criterion and asserts that Labor Law belongs to the latter:

"If we admit the methodological validity of the distinction between public and private law, Labor Law would be a branch of Private Law, because it does not bind citizens to the State; it regulates the immediate interests of individuals; it is pluricentric, emanating from international, state and non-state sources; both collective labor agreements and individual labor contracts have not detached themselves from the scope of Private Law."

In fact, the division of Law into public and private varies according to the jurist's point of view. For some, Public Law is the one that deals with the relationship between individuals and the State invested with the ius imperii. For others, Public Law is formed by rules of public order.

By adhering to the first theory, it is necessary to conclude that Labor Law is a branch of Private Law, since it deals with the relationship between individuals, namely, the relationship between the employee and the employer.

This is the dominant doctrinal current, defended by Maurício Godinho Delgado, Gustavo Filipe Barbosa Garcia, Vólia Bomfim, Sérgio Pinto, Luciano Martinez, Amauri Mascaro, among others:

"Despite its private nature, it is a Law regulated by minimum legal clauses, which does not detract from its private nature. Well, some other branches of Law also have minimum clauses stipulated by Law, demonstrating a state-directedness, an intervention of the State in private and particular relations: consumer Law, family Law, medical plans, insurance, etc."

It should be noted that there are still other currents that reject the traditional classification of Law, including Labor Law in a third category: social Law, mixed Law or unitary Law.

Finally, it should be noted that labor legislation consists of provisions that establish administrative sanctions. Therefore, when an employer fails to comply with a certain command of labor law and the inspection agency detects this omission, it can impose a fine that does not revert to the benefit of the worker, but to the state's coffers. Viewed in this light, labor law can also be classified as a branch of public law.