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Estrutura tridimensional dos direitos fundamentais: direito fundamental à saúde e mínimo existencial
| Content Provider | Semantic Scholar |
|---|---|
| Author | Nobre, Carlos A. |
| Copyright Year | 2013 |
| Abstract | This dissertation is the final account of the research produced through a master’s degree. It is intended to treat upon the provisions of the Brazilian Constitution of 1988 concerning health care, whereby health care is considered both a right entitled by every citizen and a corresponding duty on the State. On constitutional grounds, such right is judicially enforceable whenever needed, regardless of public policy on the matter. It has been enforced before courts as often as to make the phenomenon called judicialization of health. Since the right to health care, for its largesse, is grounded on legal principles, it is not to be completely understood lest it is dealt with by means of theorizing on fundamental rights, which is to include the notion of a right to a minimum to exist. Theorizing in such fashion entails the use of fundamental rights dogmatics. Further, it entails that legal dogmatics is legal knowledge matter. As for the right dealt here – meaning its practical purpose - it consists of no more than the fundamental right to health care. However, the theoretical tools used to understand it lie within legal philosophy. The combination of its practical and theoretical notions in order to make sense of the right to health care enables the lawyer to avoid reductionist traps, like solutions which disregard one or more of the this right‘s constitutive elements (its factual dimension; its axiomatic dimension; its normative dimension). Thus, legal philosophy and legal dogmatics amount for the legal knowledge needed to understand fundamental rights as a whole and the right to health care in particular. Both legal philosophy and dogmatics are deemed complementary here, and this does not mean that the difference between legal philosophy’s practical purpose and legal science’s practical purpose is being overseen. No transplanting of one’s fundaments into the other is being allowed here either. Legal knowledge is also intended to show that fundamental rights dogmatics is no lesser knowledge when it is seen in its tridimensional entirety. As for research conclusions, the right to a mininum to exist is found to be a fundamental right according to the standards of legal philosophy and legal theory alike, as much as by present standards set forth by the provisions of the Brazilian constitution. However, its scope is to be determined through dogmatic effort. These results amount to evidence for the complementarity of legal philosophy, legal theory and legal dogmatics. |
| File Format | PDF HTM / HTML |
| Alternate Webpage(s) | https://app.uff.br/riuff/bitstream/1/7572/1/A%20estrutura%20tridimensional%20dos%20direitos%20fundamentais%20-%20Carlos%20Augusto%20T%C3%B4rres%20Nobre.pdf |
| Language | English |
| Access Restriction | Open |
| Content Type | Text |
| Resource Type | Article |
