Open AccessCONSTITUTIONALISM AND JUDICIALIZATION OF POLITICS: THE “JUDICIAL” RIGHT TO HEALTHCARE IN BRAZIL
Author(s) -
Bruno Irion Coletto,
Pedro da Silva Moreira
Publication year - 2018
Publication title -
panorama of brazilian law
Language(s) - English
Resource type - Journals
ISSN - 2318-1516
DOI - 10.17768/pbl.v3i3-4.p358-393
Subject(s) - constitutionalism , jurisprudence , right to health , health care , politics , political science , law , fundamental rights , aristocracy (class) , law and economics , state (computer science) , sociology , public administration , human rights , democracy , algorithm , computer science
The right to healthcare in Brazil is seriously protected by the courts. Judicialization of everyday implementation of this public policy is a fact. One explanation may be provided by the way judges understand the effectiveness of this right. People hold subjective right to individualized healthcare benefits, and so they hold standing to sue the state in order to achieve it, regardless any consideration of public policies. Through an analysis of the jurisprudence on this issue, this paper aims to provide a critical understanding not just about what is actually happening in Brazilian courts regarding healthcare, but also to criticize it. The conclusion is that a “strong” conception of constitutionalism and fundamental rights may revel itself as “weak,” from the standpoint of general equality. Judicialization ends up empting the public debate, leading the task of solving the distribution of scarce resources to a “gowned aristocracy.”