The right to education and the new paradigms of post-Positivist constitutionalism

Abstract

The right to education is essential for the effectiveness of one of the fundamental commandments of the contemporary state, viz. the principle of human dignity, which is the highest standard that represents the core of each of the fundamental rights. This topic has been the object, in Brazil and worldwide, of an intense doctrinal elaboration and search for greater legal density. The purpose of this paper is to seek in the doctrine, legislation and case law the legal basis of the right to education, to discuss its importance for other human rights and to investigate the control of the judiciary in the implementation of educational policies. It should be added that today the national constitutional system provides for various forms of control over the actions of the Executive, such as the control by the legislature, the court of auditors and society itself; however, this study aims at elaborating on the control by the judiciary. Through an inductive-systematic method, it seeks definitions and conclusions that will certainly contribute to the understanding of the topic and to confi rm the premise that, on the basis of new interpretations of constitutional norms and the normative force of the Constitution, the Judiciary should become more effective in the application of fundamental rights, adding to Brazilian society an additional tool to combat the lack of access to education.

Keywords: education, right, control, Constitution.