A discussão da incidência do argumento da reserva do possível sob a perspectiva da teoria do discurso : uma análise da coerência argumentativa em relação à sua possível incidência no âmbito do direito fundamental social a prestações da previdência social.

Abstract

This paper involves an investigation of the incidence of the argument from the reserve of the possible from the perspective of discourse theory, reviewing the discourses of justification and application used by the country doctrine and jurisprudence, in search of the verification of argumentative coherence about its possible incidence in the scope of the fundamental rights to Social Security benefits. Although the discussion of the incidence of the reserve of what is possible in fundamental rights already exists and involves the debate about the scarcity of financial resources of the States and the limits to the limits of fundamental rights, it is reduced to the counterposition of the reserve of the possible and the existential minimum. There is a need for a new approach, carried out in this work, in order to differentiate the nature of social benefits, according to the impact of the cost of these benefits in the budget and how it is funded by taxation, assuming the hypothesis That there is a kind of socially neutral social rights that are not economically relevant to the public budget, that is to say, borne by the beneficiaries themselves, debating the budgetary and tax species involved in financing the realization of social benefits. Does the research problem look at whether the argument of the reserve of the possible could affect indistinctly regardless of the nature of the social law in question, if analyzed critically from the point of view of the discourse of reasoning and application? Or, put another way: In this context it is questioned if there is an argumentative coherence, observed by the logic of the discourse that presents reasons of foundation and application that make it possible to invoke the reserve of the possible in the effective realization of the social security benefits, Beneficiaries? The hypothesis is that the argument of the reserve of the possible does not affect benefits rights of economically neutral content, since they are borne by the beneficiaries of the state benefit itself, and does not reveal a generic form of costing, A situation that can not be ignored in the formulation of the speeches of application by the judge.From this typology, a new classification is proposed based on the budgetary impact. The work was structurally divided into three chapters. The method of approach that would allow to gauge the argumentative coherence of the justifications and application involved is hypothetical deductive, since, from the previous information, deduces as an observable consequence the hypothesis of whether or not to focus the argument of the reserve of the possible to the Case of the social security benefits, in order to refute or prove it; While the procedure methodology is bibliographical, with emphasis on the argumentative coherence analysis of the discourses in doctrine and jurisprudence. It was possible to conclude that the constitutional interpreter, when applying the reserve of the possible in the context of social security benefits, did not consider the different situational characteristics to exclude the arguments for applying this normative proposition, which define the nature of the social security benefit as an economically neutral social benefit and therefore does not bring the expected coherence in terms of discourses of application of the reserve of the possible.