The relationship between people and justice must be based on the principle of inonomia before the Law
This paper aims to draw a parallel between the movement of the right alternative and movement of people living with HIV and AIDS patients.
For this task we desincumbirmos will use as a reference "Typology for Legal Practice Organic"Submitted by Edmundo de Arruda Lima Júnior, work in Modern Law and Social Change.
Concomitantly, outline an analysis of the movement towards:
- a) carry out the legally established;
- b) transcend the established and
- c) establish the unprecedented claims of society in the fight against HIV / AIDS.
We start from the assumption that the rights of people living with HIV / AIDS and a large portion of the population is essential for the success of programs to prevent and control the epidemic.
The central hypothesis is that the type under consideration corresponds to a political strategy of war redefinidora position within the legal jurisdiction, able to: a) carry rights of people with HIV / AIDS, and b) enable the implementation of policies to prevent epidemic within the classical view of the legal operators are legal prohibition.
We also intend to demonstrate the limitation of the liberal paradigm / legal in solving many of the problems arising from HIV / AIDS.
In parallel, rapid presentation will outline the problems, challenges and solutions facing the movement.
In the face reinterada evasion of civil, political and social people with HIV and AIDS patients, the effectiveness of legally established, constituted as the main strategy in combating "third epidemic"That does not correspond to virus contamination and disease progression, but the answers given by the exclusionary and discriminatory civil and political society.
Here, unlike the typology, it is not effective to give set of progressive content of constitutional devices, but only to ensure the effectiveness of social constitutional legislation.
In this plan the legal rationality "official" does not also signs of complete exhaustion and has allowed, for example, free access to medicines ("Cocktail"), covering health plans, reinstatements to employment, access to hospital beds etc .
For access to new drugs, it is interesting to note that the movement political / legal people living with HIV, AIDS patients and NGOs are to serve as a paradigm for other diseases (muscular dystrophy, diabetes etc rare.) Also require that the state court, broadening the range of people favored with judicial decisions and access to healthcare.
The judiciary has historically been marked by conservative decisions and missing (feature no decision power) Now recognizes this right by giving practical effectiveness to art. 6 SUS of Law and Law No. 9.016 / 96 that ensures "integrated care, including pharmaceutical"
Nevertheless it is not necessary to restrict the citizenship of people living with HIV / AIDS to a bunch of boxes of medicine.
Moreover, the liberal paradigm / legal shows signs of exhaustion to scale various issues raised by HIV / AIDS.
As an example we can point to a strong trend in criminal law hold people with HIV / AIDS by the spread of the epidemic, relegating the indifference of the public and civil society itself in creating programs for control and prevention of the epidemic.
The exhaustion of the model can also be felt in the difficulty in dealing with new issues, especially in an epidemic that now requires quick answers to complex and very large portion of society.
If it is true that society as a whole has had difficulty living with AIDS, the judiciary has shown how limited, biased and somewhat susceptible to developing a more accurate critical sense, what would be the minimum to be expected of a power somehow elitist.
Thus, judges determined the loss of custody of the child to the mother after the separation was living with her son at Uncle seropositive on the grounds of risk to children's health (SP) demanded Courts HIV testing as a prerequisite to entering the magistracy (SC) Judges of the Childhood and Youth come (today) demanding (not known whether the parties' request or on impulse official) testing in children as compulsory requirement for adoption; Judges have denied injunctions seeking access medication imported to the ground that the author would sooner or later die (RS) State Attorney contest actions claiming that people living with HIV / AIDS are a danger to society and therefore are not worthy of having access to health (RS); many legal operators even know how to distinguish the difference between a person with HIV positive and AIDS, which undeniably relevant legal repercussions (SC) etc..
And so, if the Judiciary (with certain fags there ...) can scale basic issues such as access to medication, health insurance etc. has proven ineffective in treating, eg issues regarding mandatory testing of pregnant women, adoption, etc. in prisons.
Returning to the typology of the legality withheld, seems correct to point out the following paradox:
The judiciary and the law itself, despite the increasing rationalization of society and the tendency of social relations become losses, damages and compensation, widening the role of law as a form of social control, the institution is losing this role, being partially supplanted by the media and other forms of coercive control is not also responsible for their own denomination forms of the disease and the social construction of the epidemic (the category of the AIDS patient, eg).
Moreover, one can not fail to relate the type in question is interlinked legal, political and economic, in the sense that the effectiveness of planning depends not merely the right but the conditions that enable a extrajurídicas just right.
The type of legality reread, privileged place of hermeneutics alternative (as collective political stance), enables the achievement of effective prevention strategies for HIV / AIDS and ensuring the right to health, which would not be possible within a classical reading of legal operators.
What is very clear in the typology is the fact truly democratic society requires a work of craftsmanship policy aiming at a permanent symbolic reinvention.
The strategy enables lawyers to question not only as a right but as it should and as it should be.
It is in this field that occurs rescue technique as a creative enhancement law, aimed at realization of social rights and the possibility of implementing public policies of prevention.
Thus, as in the proposed typology, we understand that for the movement of people living with HIV / AIDS this plan is a very complex and highly practical repercussions in the realization of social rights and the implementation of public policies for prevention.
In the field of movement of people living with HIV, AIDS patients and drug users note gives two examples of the importance of the strategy:
- The need to implement programs to prevent epidemic in drug users with needle distribution in prisons and the distribution of sodium hiploclorito (way to clean syringes), within the classical view that finds legal obstacle.
- It is necessary, if not essential to tell deaf ears of legal operators (prosecutors) that the use of drugs will be given with or without contaminated syringes and recovery strategies for drug users has found little practical efficacy, particularly in repressive model, system that reproduces itself ideologically and materially Important also to note that the strategies of harm reduction has been accompanied by policies to treat drug abuse.
- The worsening of the epidemic spread of HIV / AIDS among the indigenous population and the apparent legal impediment condom distribution in reserves, compared to legislation that prohibits adoption of contraceptives in these social groups.
- This shows the need for a symbolic construction that allows, or at least not hinder, the work of prevention of HIV / AIDS.
We can still make a quick connection between the plan's legality reread the epidemic prevention models, and the types of Weberian ideal "ethic of conviction" and "ethics of responsibility".
The first model called repressive attach correspondence with the "ethics of conviction" in which the solutions presented back exclusively to purposes, ie, all possible steps should be taken towards the prevention of the epidemic, although it does not violate human rights and rarely be devoid of practical effectiveness.
In this model, the testings may be admitted as a condition of compulsory admission in other countries (though these countries have the highest number of HIV positive people in the world), political isolation, testings mandatory drug users, pregnant women, children to be adopted, etc. inmates.
Such policies seem to have correspondence with a model totalitarian society where solutions basically are embodied in harsher criminal laws.
Important to note that many of the current penalistas come typifying willful transmission of HIV as attempted murder and even murder consummated.
Theoretical stance that even remotely addresses the problem of the epidemic.
Moreover the demands of social groups by citizenship in Brazilian society has been accompanied by a strong repressive penal model, for example, where landless laborers.
Likewise, the demands of people living with HIV / AIDS have been suppressed under the category of the mantle "AIDS patient who intentionally transmits the disease"
The model said liberal can be related to the "ethics of responsibility" where actions are guided by the observance of human rights, recognition of diversity and plurality of subjects, enhancement of emotional information in the face of so simple.
The prevention of the epidemic in this model is related to a greater assumption not only compliance, but realization of social rights of people with HIV / AIDS and most of the population.
Thus, as the Weberian typology models feature ideal nature and can be seen if interrelating, even symbolically, between different social actors in the social construction of the epidemic.
AIDS and LEGALITY withheld
It is the field of struggle for a minimum adequacy between formal and substantive rationality, as well as for the realization of unprecedented demands of society in the fight against oppression and social exclusion.
Edmundo argues that Arruda Jr. "There is clear irrationalism is exacerbated when the formalism without effective satisfaction of social demands, starting with employment because work is the first condition of citizenship, the happy idea of Genro"
We do not doubt that the divorce between material and formal rationality Exsurge true irrationalism system.
We disagree, however, the authors choose to work first as a condition of citizenship.
Given the difficulty of establishing a scale of universally valid values and needs, we understand that the guarantee is worth nothing to the social values of labor if that right can not be exercised.
Thus, we elected Health as a basic premise for the exercise of work.
It seems to me that the very idea of electing the work denounces as a central category, with all due respect, the significant work of the authors, an overvaluation of production processes and industrial detriment of health and human existence itself.
Returning to the typology of the legality withheld, it corresponds, in a way, the need of radicalization of democracy as a universal value.
No representative democracy, merely formal, based on legal certainty and security, but as meaning the product of social conflict and resistance to the production of a subjectivity that standardizes, stigmatizes and voids.
In legality withheld democracy can be seen as incessant creation of new rights and overcoming the limits of society.
We also understand not be possible to focus on social movements responsibility for a new emancipatory rationality.
Nevertheless, one can not fail to recognize these movements as being responsible for a strategy to radicalize the democratic game.
In this sense the victory of the people with HIV and AIDS patients in the release of AZT, networking of human rights, access to medicines, resizing the doctor-patient relationship, creating a drug policy based on harm reduction etc..
However, today we are witnessing the process of "co-opting" the rule of former leaders and positive people who spend working on programs municipal STD / AIDS, with important victories for the movement.
Finally, the importance of social movements lies not merely in enforcing rights, but the necessary creation of an autonomous subjectivityResistant, mass social.
Hence, the strength of community-based movements in the circulation of a singularity and subjectivity, transgressors of repressive mechanisms of cultural identity.
So if it is true that we deny rationality inherent emancipatory social movements need to see, some of these movements as breakpoints model dominant personality.
Thus, if the work is essential to ensure people with HIV and AIDS patients, as it is necessary to circulate their desires and social demands, reconstructing the face of the epidemic and these people so stigmatized.