A efetivação das políticas públicas pelo poder judiciário e o princípio da reserva do possível

Abstract

The realization of fundamental social rights by the Judiciary in the face of the omission of the Executive and Legislative branches is a complex and controversial subject in doctrine and jurisprudence, because in order to satisfy the social pretensions in lawsuits, there is often conflict with other constitutional norms such as separation of powers, administrative discretion, legislative power of the legislature, the right of others to be affected by the possible allocation of resources from one sector to another, as well as the financial possibilities of the State to comply with these obligations. It is at the heart of this problem, involving the judicial realization of social rights, which I intend to elaborate further, analyzing the existing positions on the subject. Indeed, with regard to fundamental social rights of a benefit nature, there is a certain influence of the limitations imposed by the reservation of the possible, especially when the judiciary is urged to implement certain socio-economic programs. Although it is possible to start from the idea that there are limitations represented, especially in view of the reservation of the possible in the scope of social rights of benefit, it is necessary to glimpse the extent to which these aspects can prevent the full effectiveness and concretisation these rights.