Financing of social rights in the 1988 constitution: The “asymmetrical pact” to “fiscal state of siege”

Abstract

This essay analyzes the legal-political principles of social rights’ protection in the 1988 Constitution and the rules that established adequate, proportional and progressive funding guarantees, with emphasis on health and education. The integrated reading of such rules allows to infer that these rules create a normative micro-system that assigns meaning to certain sources of income and links levels of minimum spending to rights defined as allocative priorities. We discuss the evolution of this system in the period from 1988 to 2018, culminating with Amendment n. 95/2016, which established the “New Fiscal Regime”, equivalent to a “Fiscal State”. In the end, we discussed alternatives for intertemporal rebalancing in public accounts that, in the opposite direction, would reinforce the constitutional system to promote these fundamental rights.