A reserva do possível e a efetivação dos direitos sociais constitucionais

Abstract

This paper explores the application of the “reservation of the possible” — a Brazilian constitutional doctrine used to justify limitations on the fulfillment of social rights due to fiscal constraints — and how it affects the enforcement of rights guaranteed by the 1988 Federal Constitution. The discussion is especially relevant given the ongoing tension between limited public budgets and increasing judicial demands for the State to comply with its constitutional obligations. The central argument is that social rights must be guaranteed through a principled balancing of constitutional norms, guided by proportionality and reasonableness. Financial limitations, while relevant, cannot be relied upon in a generalized or abstract manner to excuse noncompliance with duties explicitly imposed by the Constitution. The study adopts a qualitative, interpretive methodology, drawing on constitutional hermeneutics, Robert Alexy’s theory of balancing fundamental rights, Konrad Hesse’s concept of the Constitution’s normative force, and key decisions of the Brazilian Federal Supreme Court. The analysis concludes that the Court has consistently affirmed that the reservation of the possible may not override the existential minimum — that is, the essential content of fundamental rights necessary to uphold human dignity. In this context, the Judiciary has a subsidiary yet crucial role in securing the effectiveness of social rights, provided that its interventions are technically grounded, case-specific, and respectful of institutional boundaries set by the principle of separation of powers