The Motivation of Judicial Judgments in Demands of Medications in the Context of the Crisis of Bourgeois Legality

• Autor(a) principal: Rezende, Ariadi Sandrini
• Data de Publicação: 2015
• Outros Autores: Mansur, João Paulo
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista de Direitos Sociais, Seguridade e Previdência Social
• Texto Completo: http://www.indexlaw.org/index.php/revistadssps/article/view/445
• topic: Judicial demands of medications, Social rights, Crisis of bourgeois legality, Post- positivism, Reform of the liberal state; Ações de medicamento, Direitos sociais, Crise da legalidade, Pós- positivismo, Reforma do estado liberal

The provision of free medicines to the population for the treatment of diseases is regulated by Decree No. 7,508/2011, which created the National List of Essential Medicines. A problem occurs when it is asked how judges should proceed in demands of medication when the drugs desired are not in the list. It is necessary to confront the dogma that law is the law and, therefore, to demonstrate the requirements that the contemporary legal phenomenon requires for the foundations of judicial decisions when them talk about social rights. It is depicted the rise of the idea of legality within the bourgeois state. Three problems that led to the crisis of this political model of law are exposed. It is shown the process of constitucionalization of the social rights with the reform of the liberal state and, therefore, the consolidation of the desire to control the legislative political power and the legality. It is exposed how the judicial activity can consolidate the reform initiated by the constitutionalization of social rights when obstacles imposed against its effectiveness are exceeded by the judge. It will be shown the anachronism of merely loyalist decisions which deny provisionses in judicial demands of medications based on dogmas of nineteenth-century liberal state. It will be exposed the needs of serious judicial decisions which wonder about the role of the welfare state and judicial activity in the contemporary context.