Mínimo existencial: direito subjetivo prima facie

Abstract

The jusfundamentality of the social rights, including the right to the existential minimum, comes from the Constitutional text itself, but also from the values and principles contained in the Constitution of 1998. The social fundamental rights, like any of other kind of rights, endue an essential core, which cannot be bypassed. The way with which you can define this core can vary, depending on the adoption the Internal or External Theory. Yet, the Absolute or Relative theories influence directly in the attribute of mutability or immutability of this essential core. The emphasis in such theme is important due to the fact that the existential minimum keeps, with it, a tight relation. Although, there is intense debate concerning which rights would, considering the core, the content that compound the existential minimum. Yet there are also debates, probably even more intense, towards the question of whether the mentioned content should be identified "a priori". Therefore, existential minimum is considered as an "a priori" definitive subjective right. However, from the Theory of the Principles and, thereafter, from the indispensable necessity of balancing the interests in conflict, there is the conclusion that every right, including the existential minimum, is a "prima face" subjective right. The definitiveness of the existential minimum, thus, only occurs in the concrete case, after the application of the technique for the identification of its content. It is not possible to identify it abstractly. It does not eliminate, nevertheless, the possibility of determining some indicative parameters of what compound the content of the existential minimum, or the existence of certain differences of this right in comparison to the other fundamental social rights.