O Estado constitucionalmente eficiente a partir de parâmetros democráticos: o princípio da igualdade como condição de possibilidade para a concretização do direito à saúde

Abstract

This paper analyzes the conditions of possibility for the Constitution – understood as a democratically constituted social pact – to take effect. Faced with the extensive role of constitutionally assured social rights, the study is delimited to the right to health. Non-compliance with these rights disregards the governing nature of the Constitution, especially in states where the promises of modernity have not been met. In this sense, it is necessary to parse what is meant by a democratic State; what characterizes democracy and the conditions for its materialization. The thesis is that the young and fragile Brazilian democracy undergoes predatory attacks by institutions which make it up and depend on it (and should therefore act in their preservation). Media and religion stand out as predators of democracy. In turn, in compliance with the democratic pact, the set of social rights generates demands that are up to the State to accord. Thus, the constitutional tax policy appears questioned from the viewpoint that tax collection is not a State’s faculty, but a duty, since it is dependent on it to fulfill its obligations. The problem is that, today, tax collection shows itself as an inverted pyramid: poorer people, for whom state resources should be auxiliary, are the largest contributors, in proportional terms to their economies, while the wealthiest contribute proportionately less. Given this context, the correct understanding and interpretation of the right is indispensable. The constitutional reading cannot be decontextualized from the reality lived, understood from the principles enshrined in the Brazilian Constitution. It stands out in this scenario the principle of equality – which, in Dworkin's view, derives from the human dignity, whose determination is that every person should have the right to decide what is best for her own life, besides being treated with equal consideration and respect. In a Democratic State, this treatment obliges the State itself in its relations with the social set. It is from this perspective that the present study faces the analysis of the right to health. This specific right, like any other right, cannot be interpreted in isolation, but rather – considering the social context – having as its north the principle of equality, which must also achieve the necessary universalization. The right to health has, as a condition of possibility, the implementation of the principle of equality, on the effective responsibility of the State to meet all social demands (which can not be understood as individual privileges); and in the understanding that a given right can only be so called when its service is equally universalizable. Only in these terms is possible to understand the effective compliance with the constitutional pact that established a democratic and social State of Law. Lastly, the work is developed through the hermeneutic-phenomenological method, following the interpretive line of the Hermeneutics Critique of the Law, worked by Lenio Streck, under the contributions of Hans-Georg Gadamer and Martin Heidegger, combining with the perspective of Ronald Dworkin, especially with regard to the integrity and the consistency of law.