O princípio da proibição de retrocesso como norma jurídica de proteção dos direitos sociais

Abstract

The trajectory of Contemporary Constitutionalism reveals an evolutionary process that culminates in the centrality of the Constitution as a binding normative instrument, capable of imposing on the State the duty to guarantee fundamental rights. The Brazilian model of a Democratic State governed by the Rule of Law, founded on the principle of human dignity, which binds all branches of government, requires the realization of fundamental rights through public policies and effective state actions. In this context, this study aims to investigate the legal nature and role of the principle of the prohibition of social retrogression, which emerges as a legal norm protecting fundamental rights, especially those of the second dimension. If it is valid to assert that the contemporary model of the Constitutional State imposes an obligation to ensure the effectiveness of fundamental rights, with the observance of a minimum standard of enjoyment for all of society, it is also correct to affirm that constitutional programmatic norms guide public authorities toward the continuous promotion of broader conditions for their realization, that is, the progressive optimization of the fulfillment of such rights. This research demonstrates that legal scholarship does not accept the regression of already achieved levels of fundamental rights as constitutionally valid, as it would violate human dignity, disrupt legal certainty, affront unamendable constitutional clauses, and deny the constitutional project of a Social State committed to the pursuit of a just, free, and solidary society. Therefore, in scenarios where public authorities act contrary to the implementation of rights, this study investigates the legitimacy of judicial intervention to ensure the preservation of the effectiveness of social rights. Based on these premises, it is concluded that the Judiciary plays a crucial role as a safeguarding instance in the face of actions or omissions that may compromise the adequate protection of fundamental social rights.