BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

9 Governance, Business, and Human Rights: Reflections about the Prohibition of Social Retrogression in Social Service Deliverance in Case of Economic Crisis

Rogério Luiz Nery da Silva 1 Cristiane Brum dos Santos 2

1. Introduction In the science of economics, the imbalance between revenues and expenses motivates the realization of contingencies and cuts in financial commitments. The adjustment of the accounts presumes the maintenance of the essential and indispensable expenses and the revision, limitation or elimination of those considered superfluous and of those little or moderately necessary. In the case of an economic crisis installed in a country, the directives adopted usually follow in the same direction and, historically, the social rights and legal benefits arising, as well as the foundations of Social Justice, become frequent targets of the contingency management plan. These directives may seem to contradict each other, beacuse it is exactly in these difficult moments that social benefits become even more necessary to guaranteeing the existencial minimum to a considerable part of the population. Among the problems that emerge from the relationship between social rights and scarce resources, such as the argument of financial limitation reserve of what is realistically possible to be done and the pression for it, by means of judicialization of public policies. It is controversial to what extent social rights can be limited under the prism of the prohibition of retrocession. This is because it is not plausible and credible, based on the primacy of the Brazilian legal system, that any fundamental right, whether civil or social, is subject to a process of total disposition, at the discretion of the infraconstitutional legislator and the public powers on the other hand it is not possible to conceive any right as an absolute empowerment in all and every cases. 1 NERY DA SILVA, Rogério Luiz. Post-doctorate (PhD.) in Law; Postdoctoral studies at the Université de Paris X (France); Postdoctoral studies at the New York Fordham University School of Law (United States of America); Full Professor at the University of Western Santa Catarina (UNOESC-BRAZIL); Postdoctoral candidate student at the Federal University of Santa Catarina (UFSC). Doctor in Law (UNESA) and Master in Law (UNIG). Professor at the School of Magistrates of the State of Rio de Janeiro (EMERJ). Professor at the Public Ministry School Foundation of Rio de Janeiro (FEMPERJ). E-mail: dr.rogerionery@gmail.com. CV: http://lattes.cnpq.br/1275400369932551. 2 Master’s student at the University of Western Santa Catarina – Unoesc (Brazil). Servant of the Federal Regional Court of the 4th Region; Visiting Researcher in the LLM at Middlesex University (London). E-mail: cris.brum24@gmail.com. CV: http://lattes.cnpq.br/9682274992590998.

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