Direitos fundamentais sociais, dignidade da pessoa humana e mínimo existencial: o papel do poder judiciário na sua efetivação

• Ano de defesa: 2011
• Autor(a) principal: Cordeiro, Karine da Silva
• Orientador(a): Weber, Thadeu
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica do Rio Grande do Sul; Porto Alegre
• Palavras-chave em Português: DIREITO; DIREITOS FUNDAMENTAIS; DIREITOS HUMANOS; DIREITOS SOCIAIS
• Link de acesso: http://hdl.handle.net/10923/2480

The purpose of this dissertation is to investigate the role of the Judiciary in the enforcement of the fundamental social rights in their positive dimension, by means of a dialectical dialogue between the theoretical questions that involve the institutional function of the Judiciary in a Democratic State under the rule of law, and the jurisprudential practice of the Constitutional Courts of Germany, South Africa, and Brazil. The Brazilian Federal Constitution of 1988 has opted for a Democratic and Social State under the rule of law, by expressly consecrating the human dignity as the highest value of the legal order, and the constitutional acknowledgement of the social rights. With such, it has assumed the unyielding compromise of guaranteeing to all persons a minimum for existence grounded on the human dignity, the right to freedom, and democracy. With regards to the institutional picture, the Constitutional Lawmakers have adopted a model of constitutionalism where the axis of the scale, the ultimate responsible for keeping the equilibrium between the will of the majority and the fundamental rights is the Judiciary. On the other hand, the reasonable pluralism and the separation of powers are also a result of the Democratic State under the rule of law, demanding a pluralistic reading of the Constitution, and the acknowledgement of certain exclusive domains reserved to the Legislative and the Executive. In such a context, the right (and guaranty) to a minimum for existence presents itself as the material standard of justiciability of the social rights, regardless the formatting intervention of the bodies that represent the majority. The legal enforceability of what exceeds such minimum depends on the democratic deliberation. Thus, the dignity of the human person is ensured and promoted, the Constitution is ensured while being a milestone with regards to the fundamental democratic self-connection, and the space is left open, as necessary for the political community to build up its own future, and to depict the kind of society where it wishes to live in. By making the minimum for existence effective, the Judiciary fully accomplishes the important function that has been entrusted to it for the building of the bridge between the constitutional project and the reality: protecting the fundamental rights and democracy.