Os direitos fundamentais sociais à luz do princípio da vedação ao retrocesso social frente aos limites orçamentários

Abstract

This presented work proposes to make an analysis about the impact that the budget limits cause in the effectivness of social rights, taking into account the ratchet effect through the dialectical method. The work starts from a theoretical analysis on the history of social rights, talking about its origin and the path traveled until its consecration of the federal constitution of 1988. It raises theoretical information on Neoliberalism and welfare State, present ideologies in recent governments, reaching the conclusion that neoliberalism is detrimental to the realization of social rights, once it preaches the maxim of free Market and free Trade. After analysing the fundamental social rights, in a second instance, the work addresses the social rights in species, as enshrined in the federal constitution of 1988. The work goes on with a theoretical analysis of the minimum existencial, not to be confused with minimum vital, once it’s related to the principle of the human person. The ratchet effect is commented on before being approached the judiciary’s performance in the realization of social rights, Recalling that decisions that require the State to enforce social rights causes budgetary impacts. These impacts should be measureds by the magistrates who must take into account the reserve of the possible in case of the State proves that the impacts make it impossible to carry out other constitutional values. In the third moment of this work, the tax liability law is approached, reaching the conclusion that the law is beneficial to social rights once it enables the financial balance of the State, holding public managers responsible for mismanagement of public finances. The legal aspects of public debt are also commented on this work, reaching the conclusion that, at first, the provision of credit can help in investments, but then the debt should be paid or refinanced, which will cause budget cuts, that will possibly touch on social rights. Lastly, an analysis of the public budget is carried out, on its political and legal aspects, concluding that for the 1988 federal constitution to be respected, it is necessary to make social rights a priority in budgetary law.