Social rights’ collisions: the role of proportionality & other standards

Abstract

Global scholarship and court decisions have been gradually assuming that social rights structure does not differ radically from political and civil rights structure. This assumption leads us into the conclusion that social rights – meaning all different claims in which they unfold – might enter in several kinds of collision with other principles, rights, interests or values. After identifying all those possible kinds of collisions one can define what are the tools or standards suitable for the due substantive process to be performed for overcoming each of them. We argue that the most suitable tools are classical proportionality (“proibição do excesso”), prohibition of the insufficient promotion of the social right (“proibição do defeito”) and the guarantee of the minimum core of the social right. Constitutional courts show considerable uniformity as far as the reactions against limitations to the negative dimensions of the social rights are concerned and also when it comes to the review of any eventual breach of the duties of promotion of the positive dimensions of the social rights.