A solidariedade como objetivo do Estado brasileiro e o problema de sua natureza jurídica

Abstract

This research seeks to understand the legal nature of solidarity as a goal of the Brazilian State. For this study, the first chapter deals with the evolution of the Modern State in the eighteenth to twentieth centuries seeking to analyze in the historical context of this period, the values of freedom and equality that together with the fraternity, supported the pillars of the Modern State. In this initial part we point out the presence of solidarity previously promoted by the family and the church, for its rise as a goal of the state, especially after the French Revolution and, with greater vigor, after the great world wars. In this context, we study the Solidarity imposed and dreamed of in the Social State as a proposal to address the social inequalities that loomed with the Liberal State. From there, solidarity is strengthened in the policies of the Democratic Rule of Law, as an important support for democracy and the values of freedom and equality. In the second chapter it is observed that solidarity is born of fraternity and relates to values intertwined with the concepts of alterity and subsidiarity, which is why these concepts are studied to better understand the concept of solidarity that overcomes individualism and consolidates itself as objective of the state. These first chapters contextualize, through history and concepts, solidarity in an identification with the state, which leads to the scope of this work to identify the problem of its legal nature. In the third chapter we turn to the study of the legal norm from the positivist conception and the distinctions between rules and principles conceived in Ronald Dworkin and Robert Alexy. Questions are examined behind these distinctions. Among them are the possibilities and limits of constitutional norms and the criteria for distinguishing principles and rules, which will lead to the problem of the principled issue and the excesses of discretion. Through a phenomenological-hermeneutic methodology leads to the recognition of the juridical nature of solidarity pointed out in doctrine and jurisprudence as Principle.