A justiciabilidade dos direitos económicos e sociais

: o espaço de capacidade e funcionamentos como parâmetro decisório

Abstract

The aim of this essay is to address the possibilities for judicial protection of economic and social rights by inquiring what type of norms/guidelines can be extracted from the constitutionally enshrined model for those rights, and seeking to answer the question regarding what kind of obligations and rights can be withdrawn from said constitutional design.Considering the consequences that the judicial enforcement of these rights has at the level of public policies, our approach seeks to assess the extent to which it is Courts’ role to accommodate concerns and revindications arising from those rights, if they can directly extract from the respective norms rights to performance, and to coercively determine its implementation, and what criteria can or should guide the judge in the corresponding decision-making process.Our approach starts with a critical analysis of the contemporary debate of the different conceptions of liberty, seeking to reflect on the type of justice and freedom that is desired and believed to be reasonable in a democratic society and what are the respective consequences for the system of protection of economic and social rights.Our analysis also involves (i) a reading of economic and social rights inserted in the structure of social choices values whose starting point is a reformulation of the traditional view of the welfare economics, developed by Amartya Sen, and its reinterpretation according to a normative perspective that seeks to introduce value judgments in the well-being analysis and evaluate freedom-inclusive as corresponding to the recognition and exercise by individuals of minimum rights; and (ii) a proposal of construction of the minimum core content of those rights through the insertion of the capabilities approach on its analysis, and its interpretation as the space of rights and prerogatives that determines the set of opportunities for realizing the conditions of freedom, equality and dignity for each individual.Finally, once the possibilities for judicial adjudication are verified, our analysis culminates with the answers to the question concerning how far the capability approach appears as a justifiable standard for economic and social rights, what are its possibilities and limits and what considerations may assist the judge in the decision-making process.

Date of Award	14 Dec 2021
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Fernando José Borges Correia Araújo (Supervisor) & Jorge Pereira da Silva (Co-Supervisor)