Norma Programática: direitos positivos e negativos

Por
Vinícius Silva
-
874
3403

QUESTÃO ERRADA: As normas constitucionais programáticas não geram direitos subjetivos positivos, tampouco direitos subjetivos negativos.

Não geram direitos subjetivos positivos.

Entretanto, geram direitos subjetivos negativos, no sentido em que normativo posterior pode ter sua constitucionalidade aferida frente às referidas normas programáticas.

O constitucionalismo moderno firma que as normas programáticas, embora não produzam seus plenos efeitos de imediato, são dotadas da chamada eficácia negativa.


Além dessa eficácia negativa (paralisante ou impeditiva), a norma programática também serve de parâmetro para interpretação do texto constitucional, uma vez que o intérprete da Constituição deve levar em conta todos os seus comandos, com o fim de harmonizar o conjunto dos valores constitucionais como integrante de uma unidade.

QUESTÃO CERTA: As normas programáticas, por sua natureza, não geram para os jurisdicionados o direito de exigir comportamentos comissivos, mas lhes facultam de demandar dos órgãos estatais que se abstenham de atos que infrinjam as diretrizes nelas traçadas.

As normas programáticas geram um direito subjetivo de cunho negativo. Como se impedissem o Estado de atuar de certa forma. Explico. Já percebeu que, na Constituição Federal, a maioria delas tem um tom idealizador? “será feito assim assado”, “a sociedade será tratada como rei”, “aos cidadãos, será oferecido caviar”. Um exemplo prático disso são os efeitos advindos do chamado princípio da proibição do retrocesso. As políticas econômicas e sociais devem sempre avançar (e nunca assumir o comportamento do tipo caranguejo). Sacou o tal efeito negativo? Abstenha-se, Estado malandro, de trocar o meu faisão por farofa. Uma fez faisão, é dali para cima.

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Artigo anteriorDefinição de Norma Programática (com exemplos)
Próximo artigoNorma Programática: executar e elaborar planos nacionais
Vinícius Silva

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