Social rights and public provisions: the problem of judicial management

• Grant number: 17/24035-9
• Support Opportunities: Scholarships in Brazil - Post-Doctoral
• Effective date (Start): August 01, 2018
• Effective date (End): March 31, 2022
• Field of knowledge: Applied Social Sciences - Law - Theory of Law
• Principal Investigator: Luís Virgílio Afonso da Silva
• Grantee: Michele Beniamino Zezza
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil
• Associated scholarship(s): 19/12091-7 - The implementation of social rights within the European systems of human rights protection: an analysis between justiciability and budget constraints, BE.EP.PD

Abstract

The project focuses on the analysis of the relation between social rights and public provisions, with particular regard to the problem of the appropriateness of the judiciary to manage this matter. This issue, on the other hand, is part of the doctrinal debate on the jurisdictional appropriateness to protect fundamental rights against the parliamentary majority, government and administration activity. Methodology: The research presents a philosophical-juridical character and handles an analytical and interdisciplinary approach, involving different contributions, mainly, of the political philosophy and constitutional law. From a methodological point of view, is used a theoretical apparatus essentially based on W.N. Hohfeld theory, together with a conception of rights as public benefits and constitutionally protected interests, as well as several theoretical tools provided by the so-called "dynamic conception". Main objectives: The study aims to address to the theoretical debate on the normative status of social rights proclaimed by the constitutional text. One of the most relevant purposes of the research is to demonstrate the theoretical non-sustainability of those reconstructions, which attributes to the historical succession of the different categories of rights a clear structural distinction between negative rights, understood as "self-executing", and positive rights to public provisions. The research seeks to contribute, through a doctrinal work of development of its conceptual bases, highlighting the meaning of the judicial function in relation to the interpretation and application of the constitutional provisions conferring social rights. (AU)