De la responsabilidad social a la debida diligencia: la función social de la empresa y la protección de los derechos humanos

Abstract

This article examines the social function of business as a point of articulation between economic freedom and the protection of human rights, emphasizing the transition from corporate social responsibility (CSR) to human rights and environmental due diligence. The analysis begins with Article 333 of the Political Constitution of Colombia and the constitutional case law that situates business activity within a social market economy. It distinguishes between the voluntary commitments characteristic of certain CSR practices, the concrete legal duties incumbent upon companies, and due diligence, understood as a continuous process of identifying, preventing, mitigating, monitoring, communicating, and, where appropriate, remediating adverse impacts. The study adopts a legal, reflective, and comparative methodology, reviewing constitutional norms, judicial decisions, public policies, and international standards applicable in Colombia and Brazil. The parallel between the two legal systems reveals two distinct paths through which the social function of business is realized: Colombia expressly recognizes it in Article 333 of its Constitution and has advanced the business-and-human-rights agenda through Decree 552 of 2026, while Brazil links the social function to Article 170 of its Constitution and develops it explicitly for corporations in Articles 116 and 154 of Law 6,404 of 1976 The article concludes that due diligence cannot be presented as a simple substitute for CSR, nor as a uniform legal obligation identical for all companies; its enforceability depends on the applicable regulatory, jurisprudential, contractual, and sectoral framework. The comparison with Brazil reveals shared progress, legal differences, and common gaps, particularly regarding cross-cutting regulation and effective remediation mechanisms.