ENTRE ARGUMENTOS DE PRINCÍPIO E ARGUMENTOS DE POLÍTICA

UMA ANÁLISE DAS DECISÕES JUDICIAIS EM DEMANDAS DE SAÚDE À LUZ DA TEORIA DE RONALD DWORKIN

Abstract

The growing number of lawsuits seeking the most varied benefits has transferred the power to decide on important issues in the health sector to the Judiciary. From this perspective, the present research aims to explain and discuss the distinction established by Ronald Dworkin between arguments of principle and arguments of policy. To this end, initially, a brief exposition of Dworkin's theory of law is made, with emphasis on its opposition to Hart's positivist conception, notably the thesis of judicial discretion. Secondly, it is examined whether the implementation of the right to better health operates as a matter of principle or policy, highlighting that in the case of intervention by the Judiciary, arguments of principle must always be observed. This is qualitative research, carried out using a deductive method and a technical literature and document review procedure. The results demonstrate the application of the distinction proposed by Dworkin in decisions related to health in the Brazilian context, despite recognizing certain mistakes made by judges when applying the arguments of principle.

Keywords: Right to health. Public policy. Principles. Judicialization.