Uma compreensaão constitucionalmente adequada dos direitos sociais no marco do paradigma do estado de direito: um estudo a partir da perspectiva do STF sobre os direitos à saúde e à educação

Abstract

The present study aims to analyze the current positioning of the STF on the realization of the fundamental rights of access to health and education, within the legal-theoretical framework of Democratic State of law. To do so, it proceeds to a new discussion about social rights and the false understanding that they would have necessarily provisional character, dependent on resource allocation. Then, it proposes a revision of the classic doctrine about the multiple degrees of applicability of constitutional norms, that divided them into standards of full, contained and limited efficacy, and its replacement by an implementation methodology in harmonization with the new constitutional hermeneutics and the primacy of the principles. After all, it assesses two paradigmatic illustrations of Supreme Court (STF) decisions regarding to the implementation of social rights, analyzing both the merits and the grounds on which they are based, which convey equal treatment to situations notoriously distinct.