Mínimo existencial e reserva do possível : as dificuldades e mudanças frente a pandemia provocada pelo vírus da COVID-19.

Abstract

The theory of the existential minimum is the basic concept that guarantees and protects the fundamental rights of human dignity against state power, the Constitution of the Federative Republic of Brazil based on the Democratic State of Law regulates in its fundamental principles the dignity of the human person. For much of the doctrine, the existential minimum involves guaranteeing access to health, education, justice and assistance to the destitute, as well as food, clothing and decent housing. The theory of the existential minimum emerged in Germany in a 1954 decision by the Federal Administrative Court, this decision united the dignity of the human person to material freedom and the social state. The theory has a programmatic character, that is, the state must develop programs to reach individuals in the formulation and execution of public policies that guarantee the dignity of the human person. In the most diverse countries The Democratic State of Law serves as a basis for the existential minimum and they increasingly seek an insertion of this concept in the constitutional fundamental rights and guarantees, where if the State is of law its foundation is organized and subordinated to the Magna Carta. The beacons that delimit the core of the existential minimum vary from country to country, but in the idea of some scholars the content of the existential minimum is expanded when it comes to Brazil, such as the right to social assistance and access to justice, even evolving to o Tax Law against the incidence of taxes on minimum social rights. The majority doctrine emphasizes that rights have an expense and therefore depend on public policies with financial availability. Sometimes it is up to the Judiciary to decide for the State to comply with the provision of assistance, which consequently comes up against the possibility of reserving the possible. The theory of reserve of the possible, originated in the German Constitutional Court in a case of a citizen who filed a lawsuit with the purpose of ensuring his right to freedom to choose a profession with the guarantee of free access to a place in a public university even not having vacancies. The court's understanding at the time was to deny the demand, arguing that the situation in question would be linked to what society is capable of submitting to, because if 7 the State provides assistance to citizens who have resources, it would make access to higher education of an absolute nature. to all.