June 24, 2025

Law, Justice, and Citizenship in the Twenty First Century

José Carlos Vieira de Andrade

Throughout history people have struggled for better living conditions and that has reflected on the creation and conceptualization of the so-called fundamental rights inserted in constitutional texts and resulting laws, benefits to be enforced by the State. The political and ideological conflicts which made the 17th, 18th, 19th and 20th centuries remarkable are part of a seeking process towards the idea of universality, especially after the War, with important documents being issued such as the United Nations Charter, in 1945, and the Universal Declaration of Human Rights, in 1948. Brazil, leaving a political regime characterized as exceptional, enacted a new Federal Constitution in 1988 establishing fundamental rights and guarantees, including social rights, as a result of questioning the previous regime established by the 1964 coup, and considering the participation of social movements, associations, unions and political parties with strong claim content in the social field. The civil society political engagement represents the fight for rights' effectiveness. It demands that the Brazilian Public Prosecution Office acts inducing social public policies provided by the Federal Constitution. The battle for fundamental rights (social rights) validity is a social aspiration which needs to be accepted by the Judiciary when there is inertia within the Legislative and Executive Powers. As a result, there is a debate regarding the legitimacy of the judges' actions due to the state considerations related to material scarcity, the application of the reservation of the possible theory and restriction of rights, in comparison to the conceptions of the minimum existential and human dignity, which are helpful to grant rights. Democratic continuity cannot be separated from the promises of modernity which are still in need of fulfillment, to be highlighted, in contemporary times, the implementation of fundamental social rights, notably the right to health, essential to the livelihood of human beings, especially in the context of the Brazilian reality of sharp inequalities and conflicts. In Brazil the consequences of that issue require the action of the Brazilian Public Prosecution Office and the Judiciary Power as a way to have essential support on its implementation according to the legal system, and to require the State to do something about it since it is at stake supreme legal goods, such as life and health, related to a person's right and his or her dignity. Therefore, the public power is bound to prioritize the execution of these rights despite other secondary administrative disputes. The legitimacy of the Brazilian Public Prosecution Office's action, in turn, lies in defending the primary public interest, that is, general interest, linked to values of greater relevance, associated to social purposes and the common good, which must prevail over the administration interest, a secondary public interest. Regarding private health insurance admitted on a supplementary basis, it is based on a fundamental right, being applied specifically and under consumerist norms, not being allowed restrictive and limiting clauses on rights or obligations. In this case constitutional principles prevail based on the idea of human dignity. Judicialization is accepted as a result of a breach by the public health system or private health insurance plans, starting, then, a defense of a fundamental right that leads to a complaint being issued and, therefore, to the need of an adequate legal solution in accordance with the construction of rights and the evolution of their application. The research is based on statements and documents produced, according to historical records, in addition to theoretical basis by several authors, as well as the study of procedural documents of the Brazilian Public Prosecution Office and decisions of Brazilian Courts.

Keywords: Brazilian Public Prosecution; Effectiveness; Judicial Power; Right to Health; Social Struggles