São os direitos sociais “direitos públicos subjetivos”? Mitos e confusões na teoria dos direitos fundamentais

Abstract

The article intends to deconstruct some myths that integrate the theoretical common sense of the theory of fundamental rights and to contest the simplistic framing of social fundamental rights in the concept of "subjective public right", generally conducted as a way of conferring a higher level of enforceability of these rights. Through a historical analysis of the construction of the category "subjective public right", the article seeks to demonstrate that such figure is already insufficient to describe the contemporary profile assumed by fundamental rights, since, from the juridical-dogmatic prism, all fundamental rights ("liberties", "social" and "transindividual" rights) currently have a complex legal nature, marked by a double dimension (subjective and objective) and a multifunctionality. The article concludes that although the idea of "subjective public right" was useful and important to broaden the protection of fundamental rights, it is insufficient today to give them full effectiveness, being essential to understand the complex structure of such rights and elements such as the distinction between text, norm and fundamental right and the distinction between "fundamental right as a whole" and "fundamental legal positions".