O princípio da reserva do possível na jurisprudência do Supremo Tribunal Federal

Abstract

Fundamental rights require material achievements in their implementation. However, in many cases the State is silent on this duty, and citizens are required to sue them judicially. In this context, the State alleges the material impossibility of its realization, due to the absence, insufficiency or unavailability of financial resources, because it is subject to the limits of the reserve of the possible. However, such invocation occurs in a generic and unproven way. This is a case which creates a serious risk to fundamental rights. Thus, the present research proposes an analysis of the principle of possible reserve, in particular, its treatment in the judicial sphere and the question regarding this evidence. The study is divided into two parts. The first is a theoretical research on this principle and the elements of Robert Alexy's thought that are essential to the research developed, since it is the theoretical framework used. The second, an empirical research on the principle of possible reserve, from the jurisprudence of the Brazilian Supreme Court, as well as the aspects that permeate its judicial treatment and its substantiation.