A EFETIVIDADE DO MÍNIMO EXISTENCIAL PELO PODER JUDICIÁRIO, À LUZ DO PARADIGMA NEOCONSTITUCIONALISTA

AUTOR(ES)
DATA DE PUBLICAÇÃO

2010

RESUMO

The aim of this study is to analyze how neoconstitutionalist-type interpretative methods can establish and maximize the range of fundamental rights to the existential minimum and thereby making it effective. In order to do so, interpretative methods of a neoconstitutionalist nature and Robert Alexys theory of fundamental rights are used as theoretical references. The existential minimum, in accordance with the presupposition adopted by this analysis, as the original right of citizens to demandable material services by the State, is directly deduced from the fundamental legal norms of the 1988 Federal Constitution, vehicles of social rights and of the principle of human dignity. These norms of a principle-logical nature demand interpretative methods which would confer normative force to the principles and especially produce concretizing effects. For this reason, this Master dissertation is based on Ronald Dworkin and Robert Alexys noconstitutionalist-type interpretative methods, which, by referring to principles as norms, make the effectiveness and expansion of the content of these latter feasible, in the sphere of a concrete case presented for the appreciation of the Judiciary. With the aim of delimiting the range of the existential minimum, this study works with judicial categories, such as, attributes, classifications, normative structure and restrictions, all related to basic rights. In addition, by regimenting a consistent instrumental in Dworkins constructive method and in Alexys principles theory, supported by classical model interpretative techniques and the principles of constitutional interpretation, and other guidelines presented throughout the study which contribute towards the effectiveness of the existential minimum, a model to maximize the effectiveness of the existential minimum, is created. This model serves as a parameter for drawing up a critical analysis of a Federal Supreme Court decision in the sphere of the right to the minimum existential. In this sense it can be understood that the decision of this Illustrious Court, when it is consistent with the theory of fundamental rights and constitutional interpretative methods of a neoconstitutionalist nature, makes a significant contribution to human and social development and the reduction of inequality in Brazil.

ASSUNTO(S)

efetividade judiciary mínimo existencial neoconstitutionalism poder judiciário existencial minimum effectiveness neoconstitucionalismo direito

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