Judicialization of public politics and ineffectiveness of social right at the federal Constitution of 1988

Abstract

The Democratic State under the Rule of Law that the Federal Constitution of 1988 seeks to build is based on notions which are related to the liberal State of Law and to the Welfare State. The contribution of the first is to establish limits to the power of the State, structuring its functions according to the classic idea of the tripartition of powers of Montesquieu, and providing freedom to the individual. Predominates, here, the legislative function. There is, in this moment, the so-called first dimension of the fundamental rights and a statical order, from which the jurisdictional activity searchs for all kinds of solutions. On the other hand, the Welfare State proclaims the second dimension rights, in which the State acts with his eyes turned to measures of positive character. The Judiciary, when provoked, interferes in the executive functions of the State to fulfill the social rights, With this, the study of the judicialization of the public politics turns possible. This work considers the presented arguments and directs it to the social rights and to its effectiveness problem due to the financial disponibility of the State (the Reserve of the Possible).