Uma análise do binômio direito-dever para a própria saúde a partir do personalismo

Abstract

It can be inferred from the Constitution of the Federative Republic of Brazil (CF), of 1988, which is based on the dignity of the human person, that fundamental rights, including the right to health, are interpreted not only as the result of mere conventions, but as being intrinsic to human beings. This inference is corroborated by the prohibition of any deliberation on the abolition of individual rights and guarantees highlighted in its article 60. In turn, the inconsistency of article 196 of the Constitution, highlighted by the impossibility of fulfilling the state's duty to promote comprehensive, universal and egalitarian health, in accordance with the conceptual scope of health proposed by the WHO, raises questions about the ontological nature of rights. This thesis philosophically analyzes the logical-formal coherence and convergence with some line of philosophical thought of the proposal for constitutional inclusion of individual duties towards one's own health, as well as its coexistence with the inviolability of rights, taking into account the secondary dilemmas of the need for legal coercion. This analysis is based on an understanding of the historical evolution of the correlation between the right and duty binomial, with the prioritization of rights over duties and its possible implications in the liberalism versus communitarianism debate regarding this dilemma. The research of legal philosophers demonstrated a triple aspect that greatly contributes to resolving the questions presented: the function of legal coercion in the theories of Kant and Kelsen and its importance; the role of the internalization of norms in the stabilization of a duty, in Har's theory; and the connection between law and morality in Dworkin's theory, through the use of moral principles for the purpose of preserving human dignity. But it is with Personalism that the proposal is presented as grounded, capable of restoring the coherence of the constitutional norm, preserving its foundation in human dignity. The distinction between individual and person - making present the classical conception of man as a political and social "animal" -, together with the practical application of the principle of subsidiarity, the main counterpoint to medical paternalism, make possible the distribution and recognition of competences and co-responsibilities. It is the leading role of the mature and capable person, a true citizen, who contributes to his own good, and, in this way, to the Common Good, the fruit of an authentic freedom, according to Personalism. [resumo fornecido pelo autor]