Three “whys” to the Brazilian Constitutional Jurisdiction in face of the (apparently) conflict between the existential minimum and the reserve of the possible in the guarantee of the fundamental social rights and in the public policies control: is the

Authors

• Mônia Clarissa Hennig Leal
• Iuri Bolesina

DOI:

https://doi.org/10.17058/rdunisc.v0i0.2686

Keywords:

Jurisdição constitucional. Direitos fundamentais sociais. Análise econômica do direito. Reserva do possível x mínimo existencial. Escolhas trágicas.

Abstract

This work is intended to explain that conflict between the theory of “the reserve of the possible” and the theory of existential minimum, in Brazil, is just apparent, in the way to not exist. It also aims submit three questions to the Brazilian jurisdiction, as follows: "why the jurisdiction should know the Economic Analysis of Law?", "why the jurisdiction should be careful about (empty) speeches of “reserve of the possible”?" And "why jurisdiction should prioritize the existential minimum?", all in order to serve as a way of reflection to judge, especially when the judiciary need to decide on cases that require resource allocation. The aim is, with the end of this research, with the aid of the deductive method and procedure of the historical-critical, questioning if there is, in the face of existential minimum, tragic choices, even before the theory of “the reserve of the possible”.