O direito como tradução: a crítica liberal aos direitos sociais previstos na Constituição de 1988

Abstract

This monographic paper has a objective to present the liberal criticism done to the social rights purposed in the 1988 Constitution, and, from this criticism, to investigate which is the conception of law – taking law in its broad meaning, including the constitutional order – which best adapts with the model of Estate and society proposed by neoliberalism. After surpassing an authoritarian period, the 1988 Federal Constitution represented a significative enlargement of civil and political rights. By the side of these rights, the positive freedom won a privileged space inside the new constitutional order. A broad social rights system was greeted by the 1988 Constitution, that by its turn suffered a strong influence from the portuguese directing constitutionalism. To the social rights intended in the Constitution, the representatives of the neoliberal thought, among them Roberto Campos, expressed their strong oposition, distinctively because those rights, by definition, depend of the Estate actuation. Therefore, against the constructive nature of the greeted law in 1988 the liberals offer the law conception only as a translator of a preexistent reality. The work is divided in three chapters, approaching respectively: the constitutional rearrangement of 1988: the constitutional tutelage of the social rights; and, finally, the liberal criticism to the social rights and the conception of law inherent to this thought.