A solidariedade social como um princípio geral no direito brasileiro

Abstract

This thesis investigates social solidarity as a general principle in Brazilian law, especially after the Federal Constitution of 1988. Initially, the role of principles in contemporary law is discussed in response to criticism of legal positivism, reinforced after the Second World War, understanding post-positivism not as an antithesis, but as an aspect of a more inclusive legal positivism, open to discussion about justice in the application of norms, through the theory of principles, using the Claus–Wilhelm Canaris System model and Miguel Reale's theory of law, supporting points for this understanding. Next, the analysis of social solidarity is promoted as a socio-legal fact, value and possibility of its incorporation as a parameter for measuring justice in legal relations and, finally, as a norm, in two moments of its legalization: the first, the beginning the protection of social rights in the Welfare State; the second, the affirmation of human dignity, human rights and fundamental rights, in neoconstitutionalism from the second half of the 20th century to the present day. The characterization of social solidarity as a general principle of law is proven through the analysis of its nature, logical structure, axiological-finalistic density and functions, culminating in the elaboration of a concept and the verification of its comprehensive impact in the Brazilian legal system. Between freedom and equality under alterity, public and private space, individualism and solidarity, the general principle of social solidarity is analyzed as one of the rules for applying a right more focused on social justice, in plural and complex societies contemporary.