The deconstruction of the judicial review of public policies in the enforcement of social rights: a research about the boundaries between the political e legal environments and the importance of the liberal conception of law

Abstract

The employment of technical terms in Law is used to hide the elements and philosophies which justify their construction. Legal practice transforms their use into ordinary practice. This study, applying a qualitative approach and a deductive method, postulates the deconstruction of the words which form public policies, needed to materialize social rights. First, the deconstruction of the word policy denotes its applicability in the legal environment. In Constitutional Law, it is a frequent practice to exclude them from judicial review due to its closeness to the Public Administration. This study argues, nonetheless, that those policies become laws, rules and contracts when considered by the Judiciary. Second, it suggests that, even though called social, social rights possess either an objective character, guaranteed by the individual recourse of the Judiciary, and a collective one, assured by collective legal tools. Furthermore, the reiterated practice of justifying these rights constitutes a false necessity. It concludes that social rights are considered fundamental ones and stand capable of individual and collective remedies, as well as, reviewable by the Judiciary.