A efetividade dos direitos sociais prestacionais no ordenamento jurídico brasileiro e a reserva do possível.

Abstract

Going deep the legal knowledge on the basic rights, in special the social right calls, it questions - the causes of the syndrome of the inefetividade of these rights, that are of utmost importance, not only for the right, as for all the society. While the full effectiveness of the rights to counsel costuma normally not to be questioned, the same does not occur with relation to the social rights, especially when considered its prestacional dimension. The inefetividade of these rights generates diverse consequences, since the social rights are one of fundamental of the proper conception of Democratic State of Right and inherent to the dignity of the person human being. Despite made use in art. 5°, § 1° of the CF/88, the effectiveness and applicability of the social rights constitutes more complex substance, rank that its concretion complains positive performance of the state, as well as budgetary availability. Thus, one searchs to analyze the effectiveness of the social rights, as right basic, and under the prism of I begin it of the direct and immediate applicability of these, being presented diverse positionings of the doctrine, that diverge concerning the subject, mainly, the current positioning of the Supreme Federal Court. Also excellent questions concerning the subjective dimension of such rights will be raised, as well as, of the economic dependence and the limits of judicial performance, front to the omissions of the competent power, in the implementation of these rights. It was concluded for the recognition of subjective the social rights as right, that coat the individual of being able, to complain the consecrated material installments in the Constitution, and that they authorize the Judiciary one, in omission case, to materialize the right. Beyond that, the budgetary dependence, represented for the theory of the reserve of the possible one, does not deprive of characteristics the immediate effectiveness for the Judiciary one, of the prestacionais rights, through implementation, for this power, of politics of remanejement of mounts of money, without wounding Principle of the Separation of Being able them, prescribed in art. 2° of the CF/88, in homage the will of originary legislator e, in accordance with the Principle of the Maximum Effectiveness of the Constitution.