ARTICLE: Claiming the Right to Health in Brazilian Courts: The Exclusion of the Already Excluded? Skip over navigation
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Copyright (c) 2011 American Bar Foundation
Law and Social Inquiry

ARTICLE: Claiming the Right to Health in Brazilian Courts: The Exclusion of the Already Excluded?

Fall, 2011

Law & Social Inquiry

36 Law & Soc. Inquiry 825


Virgílio Afonso da Silva and Fernanda Vargas Terrazas



There are certain widespread beliefs among Brazilian legal scholars, lawyers and judges concerning the implementation of the social and economic rights laid down in the Constitution. The most important for the purposes of this article is courts are an alternative institutional voice for the poor, who are usually marginalized from the political process. Representative of such beliefs is the statement of Piovesan, according to whom
it is . . . essential that civil society, through its multiple organisations and movements, submits cases to the courts with more frequency, maximising the emancipatory and transformational potential for the justiciability and enforceability of socio-economic rights. . . . This is the only way to ensure greater transparency and accountability concerning the duties of the State to guarantee the rights to health and education. (Piovesan 2008, 191, emphasis added; see also Piovesan and Vieira 2006; Trindade 1997; Bonavides [1982] 1993; Bontempo 2005; Lima Jr. 2002; Olsen 2008; Duarte 2006; Frischeisen 2002; Mancuso 2001; Krell 2002) 1

This almost unconstrained faith in the social and distributive potential of courts frequently leads to the belief that by granting individuals rights that have been neglected by the political powers, courts function as an institutional alternative, fostering substantial equality among citizens. While one could argue that few people doing empirical research would share this belief, 2 in countries where legal studies are seen as synonymous with theoretical and doctrinal legal study (and this is not only the case for Brazil alone), and where academic research ...
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