Social Rights against the Poor

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 will discuss the parameter that is the most adequate for deciding individual lawsuits related to social and economic rights, as well as certain conclusions stemming from the case study that can be applied to constitutional theory as a whole.