Justiça igualitária e constitucionalização dos direitos sociais: Ulisses, as sereias e a arbitrariedade moral

Abstract

This thesis answers whether social rights should be constitutionalized. Through the deductive method and bibliographic review on egalitarian theories of justice, on the relationship between the protection of rights and their moral value and on the theory of the constitution, it aims to respond whether theories of justice that claims to be egalitarian must provide for social rights in its constitution. Chapter 1 presents the main liberal egalitarian theories and the concept of effective freedom. That means that freedom is seen not only as non-interference, but also as a way of conceiving people as free and equal to formulate and implement their conceptions of a good life. It also examines why a resource metric should prevail, instead of other comparative measurement units, such as well-being, utilities, and capabilities. Chapter 2 analyzes right libertarianism and left-libertarianism. In the first part, I expose the main ideas of Robert Nozick, in “Anarchy, State and utopia”. In the second, I examine the role of equality in the main left libertarianism theories. In the third part, I demonstrate that both libertarianisms are incompatible with equality and insufficiently liberal. In chapter 3, I focus on the justification of social rights as an instrument for promoting effective freedom and the corresponding demand for financing and implementing social rights. I examine the relationship between social rights and the neutralization of factors that interfere in the distribution of resources and opportunities in society, especially the morally arbitrary factors. I discuss the importance that social rights have for fundamental human equality. I relate social rights to social responsibility for their implementation, including for people who make bad life choices. In chapter 4, I argue that, in the light of equal justice, equality of resources must result in the distribution of rights. I restructure traditional theories about the concept of rights to make it capable of also encompassing social rights. I also analyze why social rights should be a (primary) good subject to equal distribution of resources. In the first part of the Chapter 5, I argue that the idea of pre-commitment can be used to confer constitutional status to a norm and remove a certain subjects or rights, at least momentarily, from the ordinary politics. In the second, I criticize Rawls' formal constitutionalism and propose replacing it with a material one. In the third part, I demonstrate, considering the premises established in the work, that social rights must be constitutionalized, and I analyze the traditional objections that they would imply costs and generate a democratic deficit. In the fourth part, I carry out a case study, to test the hypotheses and verify how the constitutionalization of some social rights can be identified and justified. I conclude that, if we want to take equality seriously, social rights are fundamental instruments to mitigate moral arbitrariness and, therefore, they must be constitutionalized so that each citizen can be free and equal to formulate and implement their conception of a good life.