Cláudia Toledo

The aim of the current article is to analyze the concept of tragic cases and its different implications based on Manuel Atienza, one of the jurists who specially addressed the issue, and on Robert Alexy, whose work is one of the main references in contemporary Legal Philosophy. According to parameters exposed by Alexy, some of Atienza’s central assertions about tragic cases are herein demonstrated as inadmissible. Based on Alexy’s work, it is possible to justify the opposite conclusion about tragic cases, i. e., cases where there is more than one correct answer and these answers are opposed to each other.

The aim of the current article is to analyze the concept of tragic cases and its different implications based on Manuel Atienza, one of the jurists who specially addressed the issue, and on Robert Alexy, whose work is one of the main references in contemporary Legal Philosophy. According to parameters exposed by Alexy (correctness, rationality, legal argumentation, human rights), some of Atienza’s central assertions about tragic cases (lack of correct answer, legal rationality limitation, option for the lesser evil) are herein demonstrated as inadmissible. Based on Alexy’s work, it is possible to justify the opposite conclusion about tragic cases, i.e., cases where there is more than one correct answer and these answers are opposed to each other.

While fundamental individual rights are unquestionably taken as subjective rights, the same does not happen with fundamental social rights (health, education, work and housing – all of them guided by the idea of human dignity). If they are subjective rights, they are justiciable. The main argument in favor of this understanding is based on liberty. The main argument against is the so called formal argument. In relation to the pro argument, liberty can be juridical or factual. Juridical liberty has no value without factual liberty, because the right to liberty is only put into practice if one has the factual preconditions for its exercise. The argument against is that their justiciability displaces the competence of the elaboration of public politics from Legislative and Executive to Judiciary Power, what violates the principles of separation of powers and democracy. In fact, they are subjective rights, but special ones: they are prima facie subjective rights, so that their rules present exceeding content and the determination of the definitive right is only possible in the concrete case. There is only one subjective right that is a priori considered definitive: the right to Existenzminimum. Its content is not settled, but it is quite unequivocal that the rights to simple housing, fundamental education and minimum level of medical assistance are part of it. So Existenzminimum represents what is essential to assure human dignity. It is then related to the minimum necessary for factual liberty. Against the justiciability of fundamental social rights, besides the arguments referred above, the following ones have also arisen: (a) Juridification of politics; (b) Legal permission of administrative discretion; (c) Possible reserve clause. These are the counter-arguments: (a) Legislative and Executive Powers have the original competence, but Judiciary has the exceptional one; (b) It is not enough to state economical incapability of the State. It is necessary to prove it objectively; (c) Powers have discretion, but State’s will is not allowed; (d) Public administration is under the principles of legality and of non-obviation of Judiciary jurisdiction; (e) The Existenzminimun guarantee is untouchable, prevailing over any opposite allegation.