A incapacidade no direito previdenciário à luz da teoria dos modelos na dogmática jurídica

Abstract

The thesis seeks a new concept of incapacity in Brazilian social security law, using Miguel Reale's theory of models in legal dogmatics as the central theoretical framework. The study analyzes how the concept of incapacity has evolved historically in Brazil, from the early decrees to the recent reforms of Constitutional Amendment nº 103 of 2019, highlighting the need for a broader understanding that considers the complex interactions between health, work, and society. Traditionally, incapacity was defined by rigid and limited medical criteria, primarily focusing on the physical aspects of the insured individual. However, the contemporary context demands a more inclusive and dynamic approach. Globalization and the changes introduced by the Fourth Industrial Revolution have transformed working conditions, requiring new criteria that consider the social and environmental factors impacting individuals' work capacity. The theory of models in legal dogmatics offers an interpretative framework that integrates fact, value, and norm into a cohesive and adaptable legal system. This perspective allows for an analysis that connects health, capacity, disability, and incapacity, promoting an assessment that considers not only the medical condition but also the social and professional circumstances of the insured, and recognizing an expanded concept of work that promotes better integration of voluntary insured individuals in the RGPS. The research also addresses the increasing judicialization of social security benefits, emphasizing that, while necessary to ensure financial sustainability, social security reforms must respect the limits imposed by constitutional values and principles, acquired rights, the core of Article 201 from the 1988 Federal Constitution, and the rules governing the legal regime's validity. The new concept of incapacity, informed by the theory of models, is essential to ensure that the social security system can adapt to social transformations and effectively respond to the needs of the insured. The thesis concludes that applying the theory of models in legal dogmatics and incorporating biopsychosocial assessment are crucial steps to modernize the concept of incapacity in Brazilian social security law, ensuring a fairer system adapted to contemporary realities. Finally, the thesis highlights the importance of a social security system that promotes human dignity and social equity, reflecting fundamental constitutional values. Adopting of a specific concept of incapacity that integrates social and scientific advances is vital to ensure that social security law in Brazil offers just, inclusive, and effective protection