Abstract
There are two essential points that the text deals with: the qualification of social care as a social right and the character of constitutional program granted to social inclusion. Thus, interests on social assistance to identify social needs and, consequently, carrying out the measures—benefits, services, projects, and programs—able to transform the social reality in which the poor live. Everything will be done so that they give full implementation of the task of eradicating poverty and marginalization, qualified by art. 3, III, of the Constitution of Brazil as the magnum social constitutional goal.
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Notes
- 1.
Only to cite three recent criteria for definition. The Objectives of the Development of the Millenium qualify as extremely poor those who receive the equivalent to U$ 1,25 per capita a Day. The program Bolsa-Família (Family Allowance), chief program of the social initiatives of the Brazilian government defines the amount of R$ 70.00 to the per capita family monthly income and the program of the LOAS benefit defines the per capita family income as up to one fourth of the minimum wage.
- 2.
Kelsen (1974) affirms that “The legal science searches to seize its object “legally”, that is, from the point of view of the Law. To legally seize something therefore cannot mean nothing but seize something as Law, which means: as a legal rule, or content of a legal rule, as determined through a legal rule”.
- 3.
Constitutional Amendments n. 42, of 2003, and 67, of 2010, extended for an indeterminate period the existence of such social fund.
- 4.
Decree n. 807, de 1993.
- 5.
The primeiro-damismo began with the creation of LBA—Brazilian Legion of Assistance, one of the pillars of social assistance until the enactment of the Constitution of 1988. LBA would be chaired by the first-lady (primeira dama) of the country, DARCY SARMANHO VARGAS and this model set an example… The first-lady is the “mother” of the poor and of the destitute. As well qualified by ALDAISA SPOSATI: “The “primeiro-damismo” is the institutionalization of assistencialismo in the figure of the wife of the ruler (…) In Núcleo de Seguridade e Assistência Social da PUC/SP. Texto” Assistência x Assistencialismo x Assistência Social. junho/1994.
- 6.
Raichelis (2000).
- 7.
Art. 204. The governmental actions in the field of social assistance will be performed with resources from the budget of the social security, prescribed in Art. 195, in addition to other sources, and organized by the following guidelines:
I – coordination and for the general rules, and the state and municipal governments are responsible for the coordination and the execution of the respective programs, as well as the beneficial entities and the social assistance entities;
II – participation of the population, by means of representative organizations, in the creation of the policies and in the control of the actions at all levels.
- 8.
The current Regulation is Decree n. 6.214, of 2007.
- 9.
In COMPLAINT 4.374, whose justice-rapporteur was Justice GILMAR MENDER, the Full Supreme Federal Court, in a decision of April 18th of 2013, changing a previous position, maintained the decision for the special jurisdictional line and considered such restriction unconstitutional (http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=TP&docID=4439489).
References
Almansa Pastor JM (1991) Derecho de La Seguridad Social, 7ª edição. TEcnos, Madrid
Kelsen H (1974) Teoria Pura do Direito, tradução de João Baptista Machado, Armênio Amado – Editor, Sucessor, 3ª ed.
Persiani M (1981) Lezioni di Diritto della Previdenza Sociale. CEDAM, Padova
Raichelis R (2000) Esfera Pública e Conselhos de Assistência Social – caminhos da construção democrática, 2ª edição. Cortez, São Paulo
Reale M (1968) O direito como experiência. Saraiva, São Paulo
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Balera, W. (2016). Social Assistance: Analysis of the Fundamental Right Based on the 20-Year Experience of Law 8.472/93. In: Serau Junior, M., Caetano Costa, J. (eds) Assistance Benefits in Brazil. Springer, Cham. https://doi.org/10.1007/978-3-319-27046-3_6
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