Do processo à efetividade, “passando pelos sinos”: o processo estrutural como instrumento de concretização do direito social à saúde

Abstract

This paper aims to propose the applicability and test the benefits of using the theory of structural processes in the realization of the fundamental social right to health. It adopts as theoretical references the Brazilian doctrine of effectiveness (Luís Roberto Barroso), the theory of structural processes (Edilson Vitorelli) and the Critical Hermeneutics of Law (Lenio Streck). Based on these references, and considering the impacts of the normative force of constitutional rights and the difficulties in the realization of the fundamental social rights, we address the insufficiency of traditional procedural theory for the transforming jurisdictional provision that imposes the constitutional dirigisme. In this context, we propose the use of the theory of structural processes, adopting as our study object the fundamental social right to health. Based on Dworkin's influence in the Critical Hermeneutic Theory of Law, we start from the premise of the existence of a correct answer, which, when it comes to fundamental rights, is the one that corresponds to maximum effectiveness. In this sense, we investigate how the structural treatment can contribute to the maximum effectiveness (correct answer) of the right to health. The hermeneutic-phenomenological approach is adopted, advancing in the research from the comprehension of juridical phenomena: first, the comprehension of the constitutional normative force and its impacts on judicial performance; then, the comprehension of the impacts of this phenomenon on procedural theory; finally, the comprehension of the imbrication between the doctrine of effectiveness, the theory of structural processes and the Critical Hermeneutics of Law, with the testing of the applicability of structural processes in relation to the right to health based on empirical and theoretical studies. In procedural aspects, it makes use of the bibliographical, documental and case study methods; and of fiching and summarizing techniques (always in constant correlation between theory and practice). The paper is divided into three chapters, each of which is divided into two subchapters. The first chapter analyzes the impacts of the new constitutionalism on the recognition of the normative power of the Constitution, with the consequent need to enforce its norms (2.1) and the respective impacts on the actions of the Judiciary (2.2). The second chapter imports the initial analysis into the procedural field, highlighting the insufficiency of the traditional procedural model for dealing with the new litigations identified with the maturing of Brazilian collective protection (3.1), proposing the use of structural treatment, which better serves the transforming bias inherent to constitutional directing (3.2). Finally, the third chapter analyzes, in empirical and theoretical aspects, the applicability (distorting the initial proposal) and the potential benefits of using structural processes to realize the right to health. After analyzing a concrete case and listing its results (4.1), the study analyzes the replicative potential of this type of treatment and tests, by the method of the three fundamental questions of the Hermeneutic Theory of Law, the compatibility and contributions of structural processes to the realization of the right to health (adequate response). In conclusion, the proposed applicability is confirmed, both empirically and theoretically, and positive results to the realization of the right to health are verified, resulting mainly from the dialogic, flexible and prospective nature of this type of process