The constitutional law paternal: implications of possible use of the theory of reserve for contingencies

Abstract

The Constitution of the Federative Republic of Brazil 1988 includes evaluative standards and listed the long list of fundamental rights which expanded the boundaries of traditional constitutionalism. However, the legal consolidation of the fundamental guarantees is not enough to reduce the inequalities that affect society. In this sense, the article discussed the possible use of the reserve in Brazil by research in two areas: the concept of the theory and the judicial work of the analysis in the implementation of public policies drawn up by the Executive. From the dissonant positions, the article examined the pros and cons of applying the theory in the paternal law and its influence for the realization of social guarantees positivadas the Supreme Text. It was concluded that the reserve for contingencies defined by the certification of an existential minimum mandatory rights as the public budget. The Judiciary assists in the execution of formal guarantees through the enactment of decisions that drive the performance of the Government in mitigating the social problems of the country. Judicial intervention should respect the constitutional limits, the reasonableness and proportionality and the tripartite division of powers. The references used were scientific articles, legal doctrines and books about the exposed theme.