Fundamental social rights as subjective rights
| Autor | Cláudia Toledo |
| Ocupação do Autor | Professsor at Universidade Federal de Juiz de Fora, Brazil |
| Páginas | 379-388 |
Special Workshop: Alexy’s eory of Law • 379
Fundamental social rights as subjective rights
Cláudia Toledo1
Introduction
Since the Declaration of the Rights of Man and the Citizen, fun-
damental individual and political rights are considered subjective rights,
in contrast to fundamental social rights.
Robert Alexy denes fundamental social rights as rights of the
individual before the State, to something that the individual, if had
enough means and if there were sucient oer in market, could also
have from particulars: right to health, education, work and housing2.
A whole social structure or organization is necessary to full
these rights. In this article, it is asserted that this organization is a sub-
jective right when it has an immediate importance to the individual,
considering his liberty. In order to eectively exercise his juridical lib-
erty, the individual must have the material presuppositions to be able to
choose among the allowed options. These presuppositions are the con-
crete conditions that ensure human dignity, which is the major aim of all
fundamental rights. Fundamental social rights grant those conditions.
Once more the maer of the existence of subjective rights arises.
Are the fundamental social rights subjective ones? Arguments for and
against the positive answer are going to be analyzed, so that fundamen-
tal social rights are demonstrated as prima facie subjective rights. They
turn to be determined as denitive in the concrete case, after pondering
1
Professsor at Universidade Federal de Juiz de Fora, Brazil. This article is related to the
themes studied in the post-doctorate research developed from September 2011 to De-
cember 2012 with Prof. Robert Alexy in the Juristisches Seminar of Christian-Albrechts
Universität zu Kiel, Germany.
2
ALEXY, Robert. eor ie der Grundrechte. Baden-Baden: Suhrkamp, 1994, p. 454. See
ALEXY. Grundrechte. Enzyklopädie Philosophie – hg. V.H.J. Sandkühler. Hamburg: Felix
Meiner Verlag, Bd. 1, 1999, p. 525-529. ALEXY. A theory of constitutional rights posts-
cript. Oxford: Oxford University Press, 2010.
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