Portugues

contribuições do pensamento de John Rawls

Abstract

This work proposes an interdisciplinary study between philosophy and law, analyzing, from the perspective of Brazilian society, the effectiveness of fundamental and social rights comparing the theories of the existential minimum and the reserve of the possible, bringing to the debate, the thought of the American philosopher John Rawls and his contributions released in the book “A theory of justice”. The Federal Constitution of Brazil guarantees every single individual a list of basic rights inscribed; however, the effectiveness of these rights is sometimes not effectively implemented, leaving the individual with no alternative unless to provoke the judiciary to enforce such minimum rights - called by legal doctrine of existential minimum. It turns out that the implementation of these rights is, in principle, the responsibility of the State, which, in turn, is not always able to afford these rights due to insufficient resources, thus coining the thesis of reserve of the possible in legal doctrine. Both theories (existential minimum and reserve of the possible) emerged in the 20th century and originated in German law. The existential minimum theory has as its scope two large groups of rights, which require two distinct positions from the State. The first group of rights is understood as a guarantee of basic freedoms to all individuals, without distinction. In this dimension, the State adopts a passive attitude, not demanding great efforts from the public authority. The second group, however, is made up of social rights that are aimed at the population most in need. In this case, it is not enough for the State to include these rights in the legal system; an active attitude on the part of the State is necessary for their implementation, powerful enough to combat social and economic inequalities. That way, the purpose of this article is to verify the role of the State in guaranteeing basic freedoms and social rights and combine it with the study of the theory of the existential minimum and the thesis of the reserve of the possible, since one cannot ignore the fact that the public budget is limited and that social problems are immense. As a way of expanding the debate and enriching the studies of the theories of the existential minimum and the reserve of the possible, the contributions made by the philosopher Rawls will be combined with the article, highlighting some aspects that are related to these theories. For that, the conception of justice as equity and the principles of justice arising from it will be briefly presented, highlighting its role in reducing social and economic inequalities and changing the lives of people who, from the author's perspective, they are conditioned to a structural change in society and the organization of institutions.