Judizialiçazão da saúde no Brasil: corrupção sistêmica ou “mal menor”? A intervenção do judiciário em lugar da política e as consequências na sociedade

The Judicialization of health can be conceived as a legitimation, at the level of Law, of demands related to health and well-being. In Brazil the phenomenon is increasing and has some specificities, such as – among others – the high expenses imposed on the State by the courts, and above all a consolidated jurisprudential basis, provided by the STF, that legitimise such demands. Hence the criticism about the judiciary’s “imposition” on politics. On the contrary, the hypothesis of this work is that in Brazil the legal system acts on political issues due to the fact that granting medicines and treatments is just matters of public policy. Through the conceptual resources provided by the Social systems theory and the bibliographic review of the literature about the judicialization of health, we analyze the relationship between politics and law in the Brazilian context, trying to demonstrate that the judicialization of health is not the result of a “systemic corruption” (“intrusion” of the judiciary and its logics in politics) but represents an “improbability” supposedly necessary for the realization of fundamental rights and the compensation of the failures of the political system.