The Right to Have Rights: Social Assistance Rights from a Judicial Activism Perspective

Abstract

This article raises the origin of social welfare rights, from the “Poor Law” English, investigating how the expression of social assistance joined the social protective system in Brazil. Points the division between welfare, where the rights to social protection for those in need was understood as mere charity or bounty of the rich toward the poor economically, and the understanding of these rights as fundamental social rights, brought by the Federal Constitution of 1988. Investigates also the mangling process for this fundamental social right, which occurred after the promulgation of this Constitution, through various infra-constitutional laws, as happened in 1993 with the establishment of the Organic Law of Social Assistance (Law no 8.742/1993). Be in the design of disability as well as the understanding of what constitutes the family unit, even this right brings anchored in understanding its meaning that only the poor should be entitled to social assistance. So the judiciary is easing the restrictive criteria for access to this benefit, which denotes a strong judicial activism in the protection and realization of these rights.