Análise das decisões da presidência do STF sobre o direito fundamental à saúde

Abstract

The role of the Constitutional Jurisdiction in Brazil has undergone a paradigmatic transformation from the phenomenon of politics judicialization. In this context, this work aims to look into the decisions of the Brazilian Supreme Court (STF) to measure the effectiveness of the second-dimension human rights, notably the right to health, in a way to verify how they were built. Therefore, it can be said that the expectation of this thesis is to analyze the empiria in Supreme Court judgments grounded in rhetorical-argumentative rationality as the basis of the normativity of law. Consequently, this research goes through the theories of legal argumentation and its formulas of hermeneutics and the overcoming logics of old positivist exegetism. Indeed, it is not just substituting the "mouth of the law judges" from the exegetical positivism by "principles judges" from the axiological theory of legal argumentation, but rather to identify the theoretical basis employed by the Supreme Court in the transformation process of the "standard text" on "rule of decision" on the concrete level of significance. It means that the present research needs for dialogue with some concepts related to the overlap between law and politics, i.e., the ideas of counter-majoritarian power of judges and courts, the democratic legitimacy of judicial decisions, of argumentative-hermeneutics strategies in constitutional interpretation, the reserve of the possible, existential minimum, and many others. Thereby, the goal is to uncover the structures of the decision building of the Members of the Supreme Court in a methodological point of view, working up the analysis of the legal-political discourse used in the formulation of Supreme Court standards-decisions.