Direitos fundamentais: uma tomada de posição dos direitos sociais no sistema constitucional

Abstract

This dissertation intends to examine the fundamental rights and the form of their recognition in the Constitution of 1988, with emphasis on the problem of social rights, trying to determine what are the parameters for judicial protection of social rights to public benefits. To reach this purpose, the dissertation is structured into three chapters, starting with a broader consideration about the fundamental rights moving to a specific study of social rights. It presents the historical profile of fundamental rights in the first chapter, stating their main sources and describing how was their historical development. In the second chapter, it is studied the important aspects of fundamental rights, related to the concept and classification of these rights as well as the structure and effectiveness of rules that define them. In the third chapter are explored specifically the social rights, appreciating issues related to the concept and fundamentality of those rights, as well as the problem of the effectiveness of their standards, in order to point some parameters to their justiciability. As far as the method is concerned, once the studies are done in the field of History of Law and Legal Thinking, the General Theory of Constitutional Law and Legal Dogmatic, it is essential that this research is carried out using related literature and documents. The historical profile of fundamental rights is outlined based on classical works on the subject, since the Contractualism of the seventeenth and eighteenth centuries, and key historical documents since the Magna Charta of King John Landless, in the thirteenth century. The study of fundamental rights and in particular of the social rights, under the theoretical-legal research, is made primarily with bibliographic resources of national and foreign authors, whereas the positive-legal examination, that is, dogmatic, is made from the doctrine, the jurisprudence and in particular the Brazilian Constitution. This angle is justified because of the importance accorded to the subject, both because of the need to promote advances in the theory of fundamental rights, contributing to the decidability of conflicts with the lowest degree of social disruption, and the relevance of fundamental rights to ensure the enjoyment of a dignified life. Thus, the cognition of fundamental rights, especially social rights, and of how to enjoy such rights is an attempt to overcome the serious problems faced by the Legal Dogmatic and by the society, albeit modest, is the result reached.