A legitimidade e efetividade da decisão judicial concretizadora do direito à saúde no Brasil: uma abordagem político-jurídica do problema
Starting from the understanding of the emergence of fundamental rights as the result of the constant pursuit of society to establish itself before the State, this paper points out constitutionalization of social rights, particularly the social right to health, as the apogee of this historical per...
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| Formato: | Dissertação |
| Idioma: | por |
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Brasil
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| Endereço do item: | https://repositorio.ufrn.br/jspui/handle/123456789/24864 |
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| Resumo: | Starting from the understanding of the emergence of fundamental rights as the result of the
constant pursuit of society to establish itself before the State, this paper points out
constitutionalization of social rights, particularly the social right to health, as the apogee of
this historical perspective which reflected the actual need to preserve the dignity of human
beings in contemporary societies. Based on that philosophical observation and the affirmation
of pragmatic ineffectiveness of the full achievement of human’s fundamental social rights, it
seeks to analyze the State’s institutions performances in order to assert the right to health and,
particularly the exercise of judicial activity in order to give effect to the constitutional rules to
achieve it. Thus, recognizing the social reality of the implementation of the right to health
inserted in a constitutional ineffectiveness that reflects the gap between social issues and state
interventions needed to solve them and also taking into account the open statement of the
constitutional principles that, most often, lead to totally disassociated judicial interpretations
of the underlying factual reality, we analyze the performance of the judiciary from the
perspective of the (in)effectiveness of its decisions, considering that if the current judicial
context is to predominate, a sort of constitutionalism that cannot stabilize its normative
expectations will be perpetuated. This is how, based on the constitutional foundations of
solidarity and social justice, the increasing of a more dialogic action of jurisdiction is
proposed, both through the exercise of its decision-making power and the exercising of the
constitutional hermeneutics of its decisions from a prolific dimension, valuing the
compatibilization of the normative pre-understanding with reality and social complexity, both
when the jurisdiction is engaging in dialogue with the other powers and organs of the State, in
order to, based on the diagnosis of the demand which is earned by legalization, to be able to
articulate parameters and decision-making patterns achievable commands in objective reality,
thus contributing effectively to the realization of the right to health in Brazil. |
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