Constitutional social rights without a social security philosophy

Abstract

Brazilian constitutional law has a broad and multidimensional conception of fundamental rights. The so-called Welfare Rights are part of them. They are not only formally grounded on Title II, the Bill of Fundamental Rights, but are also protected by particular Constitutional Actions established as means for judicial implementation thereof. Welfare Rights as healthcare, social insurance and social care services for the most vulnerable, enjoy, therefore, a preferential position within the Brazilian system of constitutional rights. This article maintains that in spite of adopting a strong constitutional framework for healthcare, social insurance and socialcare services, the lack of a consistent and coherent political philosophy for welfare state seriously undermine the progressive implementation of these constitutional rights. In the first part the manuscript seeks to clarify the causes of this circumstance of recognition of health, socialcare and social insurance as fundamental rights without equivalent recognition of social security as a proper human right. Afterwards, the article is particularly concerned with the features of the judicialization of social rights. As a matter of conclusion, the article points out this situationas a paradox by addressing the lack of a proper philosophy of social security in a context of strong constitutional protection for health, social insurance and social care services.