The Possibility of Protecting and Expanding Capabilities via Fundamental Social Rights: The Brazilian Federal Constitution of 1988

Abstract

This paper analyses the relation between capabilities (regarding Amartya Sen’s capability approach and development theory) and fundamental social rights ensured in the Brazilian Constitution of 1988. It seeks to answer whether the fundamental social rights guaranteed in the Constitution serve to protect and expand capabilities. Using the deductive analysis method, as well doing a bibliographic review, we first make a brief discussion of Amartya Sen’s theory of development as freedom. After we analyse what are fundamental social rights in Brazil’s legal system and how they operate, they are compared to Amartya Sen’s notion of rights as means and entitlements to capabilities. Finally, we analyse the possibility of protection and expansion of capabilities through those fundamental social rights constitutionally granted. We conclude that fundamental social rights can be means to protect and expand capabilities once they are fully implemented in society. Thus, guarantee of fundamental social rights and its value as entitlements to capabilities cannot be left in the hands of the Judiciary Power as it needs to be observed by all the Public Administration, especially in making public policies.