Judicialização do direito à saúde e a recomendação Nº 31/2010 do CNJ : instrumentos para uma jurisdição constitucional aberta ou superação da (in) capacidade institucional do judiciário?

Abstract

The research that is presented here has as a theme the judicialization of health in Brazil. Its purpose is to analyze CNJ Recommendation 31/2010 based on the work of Peter Häberle, that of Cass Sunstein and Adrian Vermule. For the first, the recommendation would contribute to the construction of an open constitutional jurisdiction, for the latter two would be aimed at overcoming the problem of its institutional capacity (in) the judiciary to solve complex issues such as health. In this way she presents two hypotheses: the adoption of the theory of open society or the institutional capacity. CNJ Recommendation 31/2010 is an instrument aimed at overcoming criticisms of the process of health judicialization and is the result of the hearing No. 4 of the STF on this process in Brazil and for the fulfillment of this objective the work is divided into three parts: the panorama of the judicialization of the right to health in the Brazilian constitutional state. The opening of the jurisdiction and the overcoming of (in) institutional capacity as possible "answers" to the main criticisms about the acting of the judiciary. And CNJ Recommendation No. 31/2010 and its instruments as tools for opening and democratizing constitutional jurisdiction or superseding institutional (in) capacity. A methodology adopted for the method of approach in this study and hypothetical-deductive method of Karl Popper. The method of procedure is the historical-critical method, and as research techniques adopted are a bibliographical, documentary, descriptive.