A Desconstrução do controle jurisdicional de políticas públicas sobre o exercício de direitos sociais

um estudo sobre sua relevância no modelo liberal de Direito

Abstract

The recourse to legal terminology hides the arguments, philosophies and, justifications responsible for its construction. They are accepted, either for their technical nature, or for professional custom. Nevertheless, by deconstruction them, one could review their closed reasons and neglect options. In Constitutional Law, public policies are banned from judicial review for its political character and, social rights are diminished for its state dependency. This article, employing a qualitative and deductive methodologies, seeks to deconstruct these terms. First, it argues that public policies work as statutes, legal norms and, contracts before the Judiciary, therefore, it refutes the arguments against the judicial review. Second, this research demonstrates that, although termed social, these rights convey a subjective nature, which allows the availability of individual remedies. This research affirms, nonetheless, that the justification of social rights either by constitutional principles or by recourse to comparative law represent a false necessity. Social Rights subsist as fundamental rights, able of individual remedies and judicial review.