The fundamentality of social rights according to the cost theory and the debate between Fernando Atria e Carlos Pulido

Abstract

Article that problematizes the fundamentality of social rights. Initially, the intention is to explore the appearing of the Social State and thus social rights. Afterwards, the problem of the fundamentality of social rights is analyzed, based on the exposition of divergent arguments, especially in the doctrines of Fernando Atria and Carlos Pulido. It also deals with the cost of rights in the claim to deconstruct two theses that frustrate the effective realization of social rights: the thesis that there are exclusively negative or positive rights and the thesis that denies such rights the character of subjective rights. Finally, it proposes to point out important mechanisms for the more efficient protection of social rights. As main theoretical references, this article uses the works of Atria, Pulido, Barretto and Pisarello, described in the references. Therefore, it is an exploratory research of the phenomenon, with theoretical and descriptive character and qualitative approach, which is proposed within a critical and reflective perspective on the effectiveness of Social Rights, and such critical understanding based on the references used, little explored for research dealing with this phenomenon and thus having originality in this field of research. The deductive method, the historical-comparative procedure method and the indirect documentation search technique are used.