Social Rights Against the Poor
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Carlos Portugal Gouvêa
Professor of Commercial Law at Universidade of São Paulo Law School (USP). He is also the President of the Fulbright Alumni Association of Brazil and the academic director of the Harvard Law School Association of Brazil
Abstract
The main argument of this work is that the discourse of social and economic rights in Brazil has been appropriated by privileged economic groups with the result that the constitutional protection of those rights is no longer carrying out its function to reduce economic inequality. This article will be divided into three parts. The first is a discussion of the historic context of patrimonialism in Brazil as well as the origins of economic inequality in the country. The second part is devoted to the theoretical debate surrounding the constitutional protection of social and economic rights in light of what is often referred to as ‘new constitutionalism’, along with an interpretation of the structure for protecting social and economic rights that is present in the Brazilian constitution. The third part consists of a case study of the current state of the judicialization of the right to health in Brazil, with special attention to free concession of medicine and the new legislation on the subject. In conclusion, the paper argues that judicial decisions on the right to health, in particular, and social and economic rights, in general, have been formalistic, with little regard to their (often negative) distributive impact. The solution is then not to move from individual litigation to collective litigation (eg class actions), but to move from an ‘individual rights’ approach to a ‘distributive’ approach, which takes into account the effects of court decisions not only with respect to the parties involved but also to the rights of the poorest of the poor.
About the author
Professor of Commercial Law at Universidade of São Paulo Law School (USP). He is also the President of the Fulbright Alumni Association of Brazil and the academic director of the Harvard Law School Association of Brazil
© 2017 by Walter de Gruyter Berlin/Boston
Articles in the same Issue
- Table of Contents
- Articles
- Torture in US Jails and Prisons: An Analysis of Solitary Confinement Under International Law
- Social Rights Against the Poor
- Aid Conditionality as (Partial) Answer to Antigay Legislation: An Analysis of British and American Foreign Aid Policies Designed to Protect Sexual Minorities
- Notes
- PIGS and Pearls: State of Economic Emergency, Right to Resistance and Constitutional Review in the Context of the Eurozone Crisis
- The Greek Financial Crisis and the voluntary conferral of jurisdiction to the ECJ in the light of state immunity
- Developments Austria
- Absence of an oral hearing before the Independent Administrative Panel
- Legislation prohibiting the Austrian Broadcasting Cooperation from acting in social networks violates Article 10 ECHR
- DNA Analysis for Identification Purposes: Legal Basis unconstitutional
- Developments CEE
- Hungarian Constitutional Court: The mandatory retirement of judges
- Slovak Constitutional Court: Deprivation of Legal Capacity due to Mental Illness – a legacy of the past?
- Book Reviews
- Hans-W Micklitz / Bruno De Witte (eds): The European Court of Justice and the Autonomy of Member States, Intersentia, 2012, ISBN 978-1-78068-113- 9, 402 pp.
Articles in the same Issue
- Table of Contents
- Articles
- Torture in US Jails and Prisons: An Analysis of Solitary Confinement Under International Law
- Social Rights Against the Poor
- Aid Conditionality as (Partial) Answer to Antigay Legislation: An Analysis of British and American Foreign Aid Policies Designed to Protect Sexual Minorities
- Notes
- PIGS and Pearls: State of Economic Emergency, Right to Resistance and Constitutional Review in the Context of the Eurozone Crisis
- The Greek Financial Crisis and the voluntary conferral of jurisdiction to the ECJ in the light of state immunity
- Developments Austria
- Absence of an oral hearing before the Independent Administrative Panel
- Legislation prohibiting the Austrian Broadcasting Cooperation from acting in social networks violates Article 10 ECHR
- DNA Analysis for Identification Purposes: Legal Basis unconstitutional
- Developments CEE
- Hungarian Constitutional Court: The mandatory retirement of judges
- Slovak Constitutional Court: Deprivation of Legal Capacity due to Mental Illness – a legacy of the past?
- Book Reviews
- Hans-W Micklitz / Bruno De Witte (eds): The European Court of Justice and the Autonomy of Member States, Intersentia, 2012, ISBN 978-1-78068-113- 9, 402 pp.
