Constitutional social rights adjudication: a necessary overcoming of the subjective public right axle to the ‘meta-individual’ claim for public policies Adjudicação judicial de direitos sociais: do necessário deslocamento do eixo dos direitos públicos subjetivos para a pretensão metaindividual a políticas públicas

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A e C - Revista de Direito Administrativo e Constitucional
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Vieira L.P.
Fluminhan V.P.
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© 2021 Editora Fórum Ltda.This essay deals with a phenomenon that challenges constitutional hermeneutics: the judicialization of non-self-executing constitutional social rights due to their own low normative density. It focuses on the arising (or not) of subjective public rights directly from Constitution. Although there is a special inclination of interpreters for its immediate applicability, in this debate the kind of lawsuit (if individual or collective) is not always considered, despite its importance. In addition, the discourse of legal practitioners, focused on the benefits of judicialization, is generally far from the enormous complexity of public policy decision-making processes and the damage it does to the population. This is what defines the central point of this research: do low normative density social rights, and still without regulation, can give rise to subjective rights from an individual perspective? To try to answer this question, the research was based on a literature review. The findings suggest that the judicialization of social rights needs to change its focus. What the Federal Constitution guarantees is much more the protection of the citizen’s claim to the existence of public policies for these rights than the fragmented and unequal adjudication of individual goods and services by Judicial Branch. It concludes that is necessary to prioritize the collective procedural instruments and a shared policy-making among the branches of government to reach that new approach.
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