Fundamental Social Rights, Access to Justice and the Democratic State of Law in Brazil

The constitutional positive prescription of social rights in the Brazilian Constitution of 1988 have their fundamentality garanteed by its relation to values and goals of human dignity and constitutional democracy. In the transition from authoritarian to constitutional democracy and following a tendency observed in other societies, the Constitucional Assembly has included the demands of groups organized socially and politically into social movements, non-governmental organizations and other forms of participation. The positive prescription of social rights expanded expectations and created new ones inducing to a significant expansion of demands for legal justice by unprivileged groups with the correspondent hope for access to justice. The judicial system became protagonist with an important role to play, and the courts of law responsible for individual and collective rights was expected to be reinforced with the objective goal of dispensing justice. In relation to the State, fundamental social rights implied a relevant goal to it in providing social infrastructure and response to social expectations through effective public policies. Almost three decades have passed from the promulgation of the brazilian constitution and the world has not changed as expected. In relation to the access to justice, in spite of public initiatives oriented to a better functioning of the legal system and the provision of social justice, the results have not been successful due mainly to the complexity of social conflit and the belief on an autonomous normative system oriented exclusively by the rule of law. With respect to the role of the State, legal pluralism make us see more clear how globalization has changed the role of the state in contemporary societies and how conflicts can be solved through a combination of public and private interests.