Direitos fundamentais à saúde e à educação no Brasil e em Portugal – uma análise comparativa de sua jurisprudência constitucional

Abstract

This dissertation investigates how the constitutional courts of Brazil (Supreme Federal Court – STF) and Portugal (Portuguese Constitutional Court – TCP) ground their decisions regarding fundamental social rights to health and education, particularly in conflicts involving legal principles, budgetary constraints, and public policies. The research addresses the issue of judicialization of these rights in democratic contexts, where the judiciary assumes a central role in enforcing state obligations, thereby straining administrative discretion, separation of powers, and constitutional guarantees. The rationale lies in the need to understand the argumentative patterns guiding jurisprudence in civil law systems with distinct socioeconomic realities. While Brazil faces structural challenges, such as high demand for medications and treatments under its Unified Health System (SUS), Portugal debates the sustainability of fundamental social rights within an established system. The theoretical framework draws on Robert Alexy’s theory of fundamental rights and legal argumentation. The overarching objective is to identify convergences and divergences in the reasoning of the STF and TCP, analyzing criteria such as the principle of proportionality, non-retrogression, the right to a minimum existential level, and the principle of the reserve of the possible. The methodology combines bibliographic research with empirical analysis, using constitutional jurisprudence from Brazil and Portugal as documentary sources. A total of 82 rulings from Brazil and 15 from Portugal, selected between 2000 and 2020 in five-year intervals, were analyzed, with arguments, principles, and sanctions categorized via standardized documentation. The analysis reveals that the STF prioritizes normative provisions and precedents, with limited use of legal doctrine, reflecting a pragmatic approach. Principled balancing is frequent, favoring the right to life and human dignity over budgetary limitations. In contrast, the TCP integrates more legal doctrine and balances predominant and overlooked principles, indicating greater inter-branch dialogue. Conclusions highlight that while the STF treats judicialization as a response to fragile public policies, the TCP emphasizes cohesion among state powers and budgetary sustainability. Both courts employ proportionality and rational discourse but diverge in focus: Brazil prioritizes factual urgencies, whereas Portugal stresses procedural rationality.