ABSTRACT

This chapter reassesses one form of social rights litigation in Brazilian courts. A previous survey of cases dealing with the right to education and health showed that the Brazilian class action (ar;iio civil publica) was filed mostly against private providers ofhealth and educational services. At that point in time (1997) one could see that the public prosecutors who filed these suits were especially sensitive to 'middle class' issues, and that better-organised middle-class groups could voice their complaints more effectively than disadvantaged groups. Cases studied since 1997, however, show an increasing number of suits filed by poor people accessing services in the public sector, suggesting a new approach to social rights in Brazil. 1

The chapter begins with a short description of the institutional setting of courts in Brazil in order to justify the selection of courts and sources of information. It goes on to inquire about the symbolic effect of these social rights cases and their originality in Brazilian legal culture. Historically, ours is a time of shrinking social legislation,2 and one may recall Hegel's phrase on Minerva's owl, which only starts to fly when the sun sets (that is, too late). I believe, however, that social rights constitute one chapter in the story ab out distributive justice, and an important one in democratic societies. Even when considered in comparison with individual rights (civil and political), social rights depend on a modem concept of right (that is, avested interest with a given remedy, 'remedy precedes right'). They have become a major point of debate within constitutional welfare states, in which a charter of individual rights is complemented by acharter, or bill, of social and welfare rights, so that social rights have had to co-exist side by side with property rights, or 'traditional' vested interests. In political terms, education and healthcare are especially meaningful. Not only are they the most traditional social rights,3 but they have also given rise to large public service sectors. Legislation regarding them includes regulation of private business in these sectors, in the widest possible sense. As they are a traditional factor believed to increase social mobility, access to good education and public healthcare have been regarded as part of the democratic social order. Democratisation in Brazil (in the 1980s) took place with the support of social movements, some of which directly organised sectors of the urban poor to

reclaim their rights to health and educational services. Mothers in poor neighbourhoods (in the late 70s and early 80s) demanded district healthcare centres (postos de saude) and nurseries (creches) in their districts, and combined their efforts into a citywide network of grass-roots movements. These groups had an important role in re-evaluating the importance of democratic rules (freedom of association, electoral process, and so forth) in the belief that greater democracy could mean greater material benefits.