ECONOMIC CRISES AND SOCIAL RIGHTS: AN ANALYSIS OF THE CONSTITUTIONALITY OF POSITIVE RIGHTS RESTRICTIONS

Abstract

The scope of the present article is to analyze whether austerity measures developed during severe economic crises that arise restrictions to social and fundamental rights may be considered valid under the basis of the Legal Pragmatism. In order to achieve these goals, we intend to investigate if general principles such as equality and the prohibition to the “ratchet effect” may prevent these measures to the adopted, as well as to offer parameters under which the validation of anti-crises actions should be scrutinized. Under these constraints, we intend to demonstrate that, although there may be room to adapt the legal system into the reality, anti-crises measures cannot be seen as non-juridical spaces; instead, they must be surrounded by basilar values to the Rule of Law, such as human dignity and democracy. Finally, we intend to offer limits and parameters applicable to moments when, due to the severity of the economic crises, the public institutions cannot provide the minimum necessary to guarantee the preservation of human dignity, in order to reestablish it as quickly as possible or, at least, to not deteriorate the scarcity situation.