Efetividade dos direitos sociais e sua dimensão econômica: relação entre lei, inclusão e prosperidade

Abstract

The economic phenomenon constitutes the basis upon which goods and means of obtaining income are created for the satisfaction of all human material needs, pervading almost all spheres of social reality and influencing them to the same extent. The economic phenomenon consists of social relation webs involving almost all individuals of a society. Therefore, its level of efficiency will determine the welfare and prosperity of any such society and in this sense is instrumental for the satisfaction of social rights at various levels, for example by i) direct satisfaction of human material needs, such as the production and distribution of food, clothing, housing, among others; ii) by allowing individuals themselves to obtain income and to exchange it for material goods of their choice, therefore serving to implement the social right of "work"; and also indirectly iii) by providing the resources that sustain the goods and services intermediated by the action of the State, iv) by moderating the value of goods and services, in a way to influence the social effect of redistributive State programs. That said, social rights and economics find themselves deeply intertwined, or even more than that, the economy is the substantive phenomenological basis of satisfaction of social rights that coincides with human material needs. This finding might seem alien to Law, however, latest research both in the field of economic theory - in particular the New Institutional Economics - as in economic historiography reveals the profound influence that the legislative body exercises on the economy of a society. Among the effects, one sees an uneven negative economic impact on low-income populations, as well as on small production units. The uncontrolled expansion of norms is an artificial barrier which keeps populations excluded from the market and trapped in an artificial state of poverty. The disorderly expansion of the set of rules is a characteristic phenomenon of the twentieth century, as derived from the paradigm of the Welfare State. However, such disorderly expansion has itself undermined the very purpose of the Welfare State. For this reason, such problem led to the emergence of new legal theory and analysis methodologies of Law with a view to the reorganization of the legal system and the recovery of its efficiency, that is, Legistics and Legisprudence. The reordering of the legal system, therefore, is required as necessary task for the effective implementation of fundamental human rights, in particular the social rights, given i) the necessary economic and social development to effect the satisfaction of material needs of all, and given ii) the removal of legal obstacles that prevent large portions of the population to take advantage of the possibilities offered by the market and to have their property rights effectively protected as much as the rest of the population, in order to solve all economic inequality created by the norms.