Da norma à decisão: a mudança de paradigma na teoria do direito e aplicação do direito fundamental à saúde no Brasil

Abstract

The present work intends to make an analysis of the Theory of Law and of judicialization of the right to health, specifically in relation between the judiciary and the legislature and phenomenon that, due to the significant extension, has been causing effects in the other branches of government. The norms that regulate the implementation of the right to health in the Brazilian scenario and measure the different positions on how the judiciary should act in the face of the multiple possibilities of the demands that require a solutio Wherefore, it intends to show right to health occupies a expressive position in the brazilian constitutional order, such as the rights to life and human dignity. In the first chapter, seeking to explain from the norm to decision in Theory of Law. It intends to the fundamentality of the right to health and its beginning, as well as it’s constitutional legal content. In the last chapter, there is a discussion about the infraconstitutional norms that regulate the right of health and Judicial Power. Knowing about the norms that regulate the right to health and those that aid its practical implementation, especially emphasizing in the concession of medicines, last chapter gives an overview of judicial control on the health judicial processes, in that part of the study, some criticisms are exposed to judicial activism too.