Derecho a la renta básica universal y estado socialUn análisis de Derecho Constitucional Comparado entre España y Brasil

Abstract

This thesis analyses the possibility of introducing a right to a universal basic income in the Spanish and Brazilian legal systems, from a Comparative Constitutional Law perspective and with reference to the social State paradigm. Given that the essence of this paradigm lies in the State's mandate to intervene in society to guarantee real freedom and equality, it should not be confused with the structures used for this purpose. These must be linked to their historical materiality, adapting themselves to avoid or withstand situations that deny the equal freedom of individuals in the position of exercising their fundamental rights. This mandate is present, with all its subtle variations, in both the Spanish Constitution of 1978 and the Brazilian Constitution of 1988. In both cases, insofar as the implementation (structure) is not confused with the paradigm (mandate) of the social State, the effectiveness of the former can be analysed on the basis of the content of the latter. In terms of social protection aimed at guaranteeing income, the two analysed States follow a similar general formula, with the remuneration of labour as the main focus. This centrality of employment is particularly worrying due to the lack of sufficient jobs, in quantitative and qualitative terms, to guarantee a decent life for the entire population that have to sell their work on the labour market. In both countries, although to varying degrees, structural unemployment, the precariousness of available jobs and the phenomenon of working poor individuals can be observed, so that the current structure of social protection is not capable, either in abstract or in concrete terms, of fulfilling the minimum aspects of the objectives that the paradigm of the social State assigns to the public authorities. The prospects for the future are not encouraging either, largely due to the growing impact of the digital economy. As an alternative, to overcome the lack of effectiveness of the social State paradigm, the research considers the introduction of a right to a basic income, a regular, individual, universal and unconditional economic payment, in an amount at least sufficient to guarantee a vital minimum. This configuration makes it possible to identify in the basic income a function of guaranteeing the system of fundamental rights, since it functions as a permanent structure for the emancipation of people, which aims to ensure, prior to the situation of need, the minimum material conditions for the exercise of their rights. In both cases, basic income is presented as a tool in line with the principles of the social State and oriented towards the same objectives, so that, although it replaces some of the existing measures, by opposing them, it does not replace, but rather deepens, the paradigm of the social State. Its introduction by infra-constitutional means would be legally possible, without requiring the alteration of the constitutional text. However, leaving it under the broad margin of configuration of the Legislative Branch would not be a coherent option with the relevant function attributed to it in the reformulation of the protective structure of the social State, as a transversal guarantee to the system of fundamental rights. The proposal is to create a fundamental right to a basic income, autonomous from other rights, by means of a statement that makes the monetary, regular and sufficient nature of the payment, as well as the individuality, universality and unconditionality of the right unavailable in the face of the action of the public authorities. This right must have the highest degree of efficacy and the broadest measures of protection that each Constitution grants to fundamental rights.