O âmbito de proteção do direito à alimentação : uma perspectiva pós-positivista deste direito fundamental social

Abstract

In 2010, through the Constitutional Amendment, the right to food was included in the list of fundamental social rights of the Brazilian Constitution, acquiring, since then, legal nature of a fundamental social right endowed with constitutional normative force. Under the Post-Positivist theoretical framework, which backed this work, fundamental rights are, in essence, universal rights, endowed with moral validity, converted into Positive Right through a Constitution. After their positivation they acquire the capacity, intrinsic to their nature as constitutional norm, to order and conform reality, at the same time as they are cut and constructed by the constantly changing historical reality. Given its nature of optimization warrant, it is important that the scope of protection and essential content of each fundamental right is delimited. The objective of the present research is therefore to define the scope of protection of the right to food, taking into account the analysis of social, cultural, political and economic factors that permeate this right. In other words, the purpose of this paper is to answer the following question: What rights does a Brazilian have before the right to food in article 6 of the Brazilian constitution? After developing the theoretical substrate that allows an analysis from the Post-Positivist perspective of the right to food, we discussed the origin and historical evolution of this fundamental social right in the international and national scenario. Next, the main official instruments that define the right to food, especially the food guide for the Brazilian population, were analyzed, an official document containing recommendations and guidelines for the definition of adequate and healthy food, guided by the national strategies of Food and Nutrition Security in Brazil. The main contributions of the Brazilian State to the effectiveness and guarantee of the protection of the right to food, as well as its correlation with the existential minimum, were also discussed. Finally, an analysis of the judicial demands involving nutritional therapies found on the websites of the Federal Supreme Court and Superior Court of Justice was carried out, without any delimited period of time. The methodology adopted was predominantly deductive, with a small space for induction in the survey of jurisprudence related to the research proposal. The method used was qualitative, given the constitutional incipience of this right, which justifies the scarce literature pertinent to the work proposal. The sources used for the development of the research were indirect. Defining the scope of protection of the right to food will enable an essential parameter for the formulation of the respective public policies, for its better legislative elaboration, and also to subsidize eventual legal actions aimed at guaranteeing the effectiveness of this right. The main conclusions reached by the research were: (i) the definition of the right to food as a fundamental social right, (ii) the concept that the right to food, 6 of the Brazilian Constitution, should be understood as the right of everyone to adequate food (iii) and definition of the scope of protection of the right to food in Brazil.