L'ambiguità dei diritti costituzionali : il caso della judicialização da saúde in Brasile

What is the peculiarity of constitutional rights with respect to values in general? An interesting case is offered by the Brazilian legal system, which inserted "health" in the Constitution as an individual fundamental right. This has led to a wide and problematic involvement of the courts, to which citizens turn to access therapies and medicines that the Brazilian health system is often unable to guarantee. This phenomenon, known as the "judicialization of health" has been considered as a threat to the autonomy of medicine and as an abuse of the judicial instrument. However, these fears seem misplaced. Instead, the authors of this article argue that the problem is twofold. On the one hand, doubts arise about the constitutionalization of social values: what should be expected from "health as a fundamental right of the person"? On the other hand, the implementation of values is necessarily left to the various subsystems according to their internal criteria, such as, in this case, those of the "welfare state".

Due to this situation, though, unsolvable structural problems emerge, which can only be approached in a "hypocritical" way. [Publisher's text].