A proibição de retrocesso social como instrumento de proteção dos direitos sociais em tempos de austeridade fiscal

Abstract

Fiscal austerity advanced in Brazil, implementing control over public spending, in search of budget balance and the generation of primary surpluses, from a financial-accounting perspective, causing reductions in the levels of realization of social rights. The research aims to defend the prohibition of social regression as an appropriate instrument for the protection of social rights, in the face of laws and acts resulting from austerity, such as fiscal adjustments and counter-reforms. The deductive methodology and bibliographic review were used, as well as research into laws, jurisprudential precedents, International Treaties, data and statistics from Ipea, PNAD, IBGE, Oxfam, OCDE, BM, among others. To this end, it was demonstrated that social rights were achievements of workers and that the welfare state consolidated a pact between capital and labor in the post-Second World War period. It was observed that its decline was due to the increase in public spending and the fall in the profit rate, making it difficult to reproduce capital. As a reaction, neoliberalism rose, promoting the ideology of the minimum state, privatizations, the flexibilization of labor rights, the reform of social security protection models and fiscal austerity. This resulted in the control of public social spending, in a conception of economic balance solely to guarantee the privileges of the financial debt system. It was found that the Constitution of 88 is effective in compliance with the financial Constitution and the budget and public spending, which limit austerity. Consistent grounds for prohibiting social regression were identified, analyzing the main objections, especially the accusation that it would violate democracy, unduly interfering in the autonomy of the Executive and Legislative Powers. Leading constitutionalism is current and is compatible with political pluralism, which does not admit reformist ideological projects. A critique was made of the discourse on the costs of rights and the reservation of the possible. Finally, the possible paths for the Judiciary to act compatible with democracy, were clarified.