Judicialization and Medical Sub-Politics

Abstract

The phenomenon of judicialization and the growing litigation in health demands have gained increasing importance - not only academic but also practical. In Brazil, this is usually seen by the academic criticism as the involvement of the Judiciary in the political sphere and its activity, as an interference in the planning of public policies. The judicial decisions would end up by defining policies, thus diverging from the democratic model of industrial modernity based upon the separation of Powers. Various research projects have argued that the Judiciary tends to attend to these demands, which invoke as their legal foundation the right to health, as defined by the constitutional norms, and based upon medical reports. This article discusses judicialization and medical sub-politics in the contemporary scene. In the light of contemporary social changes, judicialization can also be characterized as an echo of a reflexive process of modernity, in which established fundamental rights point to a new political culture. Citizens use non-traditional means of intervention and public and judicial control to defend their interests and rights. The very factual foundation of the demands is constructed reflectively by medical knowledge, impermeable to the traditional forms of external control. This generates a judicialization controlled by medicine and favors the expansion of the field of, activity, market and research for the medical, hospital and pharmaceutical industries. Thus, judicialization can attend to the more characteristically techno-scientific and economic interests than to democratic ones. Both society and the State end up by being obliged to have recourse to norms and knowledge medically constituted and monopolized, in a reflective market strategy. It is important to rethink judicialization in the light of the intensely political activity of medicine, thus opening up new prospects for the debate and critical understanding of this activity, its consequences, purposes and reflectively constructed risks.

Keywords:
judicialization; medicalization; individualization; medical sub-politic; risk society; public health