El Derecho a la Salud en Chile y Brasil ¿Los Jueces como Héroes de la Justicia Social?

Abstract

The comparative study of Constitutional case law about the social right to health, of both Brazilian Supremo Tribunal Federal and Chilean Tribunal Constitucional, allows to discover differences between them, given by the subject who is deemed as liable to comply, in each country, with this social rights. But, at the same time, both brazilian and chilean case law show similarities, given by the approach chosen by both courts. In short, that approach gives legal binding nature to social rights, in a way that allows those Courts to ignore, in practice, a number of important considerations; first of all, the existing legislative settings on such rights, established by the political branches of government. Given the purpose of positive rights, it is worth contrasting this jurisprudence with its effects, in terms of whether this case law is able to improve, in practice, the living conditions of the most disadvantaged.