Social Rights in Comparative Constitutional Law: Right to Health in the Perspective of the Brazilian and German Constitutional Courts

Abstract

This article deals specifically with the current phenomenon of the judicialisation of social rights in Brazilian and German Constitutional Courts, taking as practical example the right to health. A progressive increase in the number of lawsuits in Brazil involving health insurance plans, expensive and experimental medicines and hospital admissions has been noted in the last years. The main obstacles to the judicial realization of social rights in Brazil are the alleged violation of the principle of separation of powers – branches of state – for decisions regarding the allocation of public financial resources, the absence of a previously prepared public policy and the impossibility of universalizing social demands due to economic-financial limitations. Nevertheless, the legal categories of the ’existential minimum’ and the ‘duty of progressivity’ have been used in the most recent decisions of the Brazilian Supreme Court as a way of realising social rights under strong influence of the German Federal Constitutional Court and international human rights law. Finally, the situation of Brazil before the Inter-American Court of Human Rights regarding the implementation of social rights in a structural context of exclusion and poverty is analysed.