O regime de precedentes na jurisdição constitucional brasileira: os precedentes como mecanismo de garantia e efetividade do direito fundamental à saúde

Abstract

The present monographic work aims to analyze the question of the effectiveness of the fundamental right to health, under the dynamics of the theory of judicial precedents, focusing on the binding pronouncements of the Supreme Federal Court in matters of health, to verify whether its use it can generate significant impacts to maximize the realization of the right to health. It starts, then, from a general perspective of the right to health in the Brazilian constitutional order, to identify the protection and foresight that it is granted by the constitutional text, as well as its general characteristics, including its owners and recipients, their dimensions (objective and subjective) comprising the legal-subjective positions that health may demand, even as a subjective right to material benefits. Then, the system of precedents is studied, from a historical point of view, so that it is understood how it was incorporated into Brazilian law and its main functions, about the standardization of judicial decisions, which result in their ultimate purpose, which is legal certainty. After all the notes on the dogmatics of the binding precedents, it is directed to the study of the role exercised by the Judiciary as concertizers of the right to health, from the point of view of the judicialization of health, mainly in the question of the right to health as the right to material provision. In this regard, the treatment of the right to health within the scope of the Federal Supreme Court will be addressed, based on binding precedents in the matter of supply of medicines by the judiciary. At the end of the day, the conclusion is reached those judicial precedents are important mechanisms for the realization of the right to health, whether due to their judicial or extrajudicial effects.