EXCESS OF SELF-REFERENCE AND LACK OF HETEROREFERENCE: THE SYMBOLISM IN THE SUPREME COURT JUDGMENTS ABOUT THE RIGHT TO HEALTH

Abstract

The aim of the research is to identify if the performance of Brazilian Supreme Court (STF) on the right to health results in effectiveness or in symbolism. The research was based on a theoretical and empirical investigation. The collect of data was centered in theoretical sociologists, with respective prominence given to the Niklas Luhmann's Theory of Systems. On the theoretical reference, the conceptualization of the expression symbolic is extremely rich, to the point of routinely finding semantic confusion. To avoid it, this work embraces the thesis developed by Marcelo Neves in his book: A constitucionalização simbólica (The Symbolic Constitutionalization), in which he develops a debate about the symbolism of constitutional norms. The empirical research was based on a documentary investigation, with data collected from Brazilian Supreme Court's leading cases. The research results indicated a paradox. It was found that the Brazilian Supreme Court, in a point of view restricted to the litigants, searches for an illusory effectiveness of the right to health, which is symbolic, since it judges from a rationality exclusively adjudicatory. Therefore, it denies to see the issue as a distributive issue, as a matter of distribution of wealth. This, in a macro perspective, implies in a higher chance of corruption in the political system, for forcing the public administration to distribute a wealth that, sometimes, does not even exist, as well as to exclude most of the population, that does not have access to this Court or that is indirectly impaired by resources diverged from the public health to accomplish the Court's decisions.

Keywords
Right to Health; Brazilian Supreme Court; Theory of Systems; symbolism