Os paradigmas da judicialização da política e a efetividade do direito fundamental a saúde no ordenamento jurídico brasileiro.

Abstract

It is clear in the jurisprudence homeland normative force that the Constitution of 1988 and acquired its effectiveness against social expectations. In relation to the fundamental right to health a departure from strictly political nature exercised by the Legislative and Executive occurred, to acquire direct and immediate applicability by judges and constitutional courts. In this sense, fundamental and social rights won features of subjective rights safeguarded by judicial review. At that judicial intervention requiring the public power determinations that seek effective implementation of public policies is called legalization of politics. The issue as primarily versa regarding the application and allocation of public resources, if they are the exclusive responsibility of the legislative and executive branches, and thus, would be invasion of competence and disrespect to the system of checks and balances established by the Constitution before 1988 the possibility of the judiciary to determine the application of budgetary resources at government headquarters on the implementation effectiveness of constitutional rights and guarantees. So with the advent of neoconstitutionalism, we sought to ensure functionality of constitutional rights, thus admitting a reinterpretation of the Theory of Separation of Powers that expected from the new social and political landscape of contemporary democracy. The objective is to analyze the phenomenon of judicialization of politics as efetivador body of fundamental rights, through a study of the powers of the state determining what the limits of the state court without compromising the organizational structure of a democratic state. The methodology used was the method of historical - evolutionary procedure, the method of approach would be the exegetical - deductive legal and technical bibliographic and documentary research.