AIDS and Legality is almost like an anathema! Usually this is the country of laws that do not catch! Someone, in the name of all hell, could you explain this to me? Because I do not understand the mechanics of it. What I see is that there is a bundle of laws that protect the person living with HIV and this is of no use to them and this text, a Bright Text of a Brilliant Jurist, Sandro Sardá is from 15 years ago and remains as current as if it had written yesterday or as if we had traveled in time!
AIDS and Legality is the Scope of this Text And, If You Do not Have Stomach For Canalhices, Do not Pass From Here!
The relationship between people and justice must be based on the principle of equality before the Law
The objective of this paper is to draw a parallel between the alternative law movement and the movement of people with HIV and AIDS.
In order to carry out this task we will use as reference the "Typology for Organic Legal Practices"Presented by Edmundo Lima de Arruda Júnior, in Modern Law and Social Change.
Concomitantly, we will outline an analysis of the movement in the sense of:
- a) implement the legally established;
- b) transcend the institution and
- c) institute the unprecedented demands of society in the fight against the HIV / AIDS epidemic.
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.
AIDS AND HEALTH: CENTRAL HYPOTHESIS
The central hypothesis is that the typology under analysis corresponds to a political strategy redefining the position war within the juridical body capable of:
a) to realize the rights of people with HIV / AIDS; and
b) enable the implementation of policies to prevent the epidemic that within the classic view of legal operators are legally closed.
We also intend to demonstrate the limitation of the liberal / legal paradigm in solving many of the problems arising from the HIV / AIDS epidemic.
At the same time, we will outline the rapid presentation of the problems, challenges and solutions faced by the movement.
AIDS AND PERPETUALLY SOUNDED LEGALITY
In the face of the reintegrated denial of civil, political and social rights to HIV positive people and patients, the implementation of the juridically instituted is the main strategy in the fight against "third epidemic"Which does not correspond to virus contamination and disease progression, but rather to the exclusionary and discriminatory responses given by civil and political society.
Here, unlike the typology presented, it is not a question of giving effectiveness to the set of progressive constitutional devices, but only to ensure the social effectiveness of infra-constitutional legislation.
In this plan the "official" legal rationality does not yet give signs of complete exhaustion and has made possible, for example, free access to medicines ("cocktail"), coverage of health plans, reintegrations to employment, access to hospital beds etc. .
In the case of access to new medicines, it is interesting to note that the political / legal movement of people with AIDS, AIDS patients and NGOs are serving as a paradigm for other pathologies (muscular dystrophy, rare diabetes etc.) that also demand the State judicially, widening the range of people favored by judicial decisions and access to health.
The judicial power that has historically been based on conservative and omission decisions (non-decision power characteristic), recognizes such right giving practical effectiveness to art. 6 ° of the SUS Law and Law No. 9.016 / 96 that ensures "comprehensive therapeutic care, including pharmaceutical".
Nevertheless it is necessary not to restrict the citizenship of people living with HIV / AIDS to a lot of medicine boxes.
Liberalism (mistaken and misleading name) Truncates Access to Health and Life
AND…. Meanwhile, People I Supposed to Love Me - Blood Unites Us - They Said Willing to Pay Price, My Death and My Wife, the most visible on their horizon for a little more money. I am, decidedly an idiot for believing the words of this people!
Moreover, the liberal / legal paradigm shows signs of exhaustion in order to scale up the various problems caused by the HIV / AIDS.
As an example, we can point to a strong tendency of the Criminal Law to hold people with HIV / AIDS responsible for the spread of the epidemic, relegating the neglect of public power and of civil society itself to creating programs to control and prevent the epidemic.
The depletion of the model can also be felt in the difficulty in dealing with new issues, especially in an epidemic that requires fast and very complex responses to the great part of society.
If it is true that society as a whole has had difficulties in living with AIDS, the judiciary has shown how limited, prejudiced and unlikely to develop a more accurate critical sense, what would be the least expected of a power, in a sense, elitist.
Thus, judges determined the loss of custody of the child to the mother who after the separation went to live with the child at the home of the HIV-positive uncle under the allegation of risk to the child's health (SP);
Courts demanded anti-HIV test as a requirement to enter the magistracy (SC);
Judges of the Childhood and Youth Court have come (to this day) demanding, (it is not known whether at the request of the parties or if by official impulse) compulsory testing on children as a requirement for adoption;
Judges denied injunctions seeking access to imported medication on the grounds that the author would sooner or later die (RS);
State prosecutors challenge actions claiming that people living with HIV / AIDS pose a danger to society and therefore are not worthy of access to health care (SR);
many legal practitioners do not even know how to differentiate between a seropositive person and a person with AIDS, which undoubtedly has relevant legal repercussions (SC), etc.
And so, if the Judiciary (with certain fags there ...) can scale basic issues like access to medication, health plans etc, has been shown ineffective in treating, for example, of issues related to compulsory testing in pregnant women, adoption, prisons etc..
Going back to the typology of suppressed legality, it seems correct to point out the following paradox:
The Judiciary and Law itself, despite the increasing rationalization of society and the tendency of social relations to become relationships of losses, damages and indemnities, widening the role of law as a form of social control, the institution loses this role, being partially supplanted by the media and other forms of non-coercive control, are also responsible for the disease's own forms of denomination and social construction of the epidemic (the category of the AIDS patient, for example).
In addition, one can not fail to relate to the type in question the interconnection between legal, political and economic, in the sense that the effectiveness of the order does not depend only on the law, but also on extra-juridical conditions that allow a fair right.
The type of legality relied on, a privileged locus of alternative hermeneutics (as a collective political stance), enables the achievement of effective prevention strategies for HIV / AIDS and the realization of the right to health, which would not be possible within a classic reading of legal operators .
What is very clear in the typology presented is the fact that truly democratic society requires a work of political craftsmanship aiming at a permanent symbolic reinvention.
The strategy allows jurists to question not only how the law is but how it should and should not be.
It is in this field that the recovery of the technique occurs as a creative way of improving the law, aiming at the realization of social rights and the possibility of implementing public prevention policies.
Thus, as in the proposed typology, we understand that for the movement of people living with HIV / AIDS this is a very complex plan with great practical repercussions on the implementation of social rights and the implementation of public prevention policies.
In the field of the movement of HIV-positive people, AIDS patients and drug users, two examples note the importance of the strategy:
- The need to implement epidemic prevention programs for users of syringe and in-jail drug users, the distribution of sodium hypochlorite (a way to clean syringes), which within the classical view, finds legal obstacle.
- It is necessary, if not fundamental, to tell the deaf ears of legal operators (Public Ministry) that the use of drugs will occur with or without contaminated syringes and that drug recovery strategies have found little practical effectiveness, especially in the repressive model, It is important to point out that harm reduction strategies are accompanied by policies to treat excessive use of drugs.
- The worsening of the spread of the HIV / AIDS epidemic among the indigenous population and the apparent legal obstacle to the distribution of condoms in reserves, before the legislation that prohibits any adoption of contraceptive methods in these social groups.
- This fact demonstrates the need for a symbolic construction that enables, or at least does not hinder, efforts to prevent the HIV / AIDS epidemic.
We can also make a quick rapprochement between the legality plan, the epidemic prevention models, and the ideal Weberian types of "conviction ethics" and "ethics of responsibility".
In the first model called repressive we attribute correspondence to the "ethics of conviction", in which the solutions presented are exclusively for the purposes, that is, all possible measures should be taken to prevent the epidemic, even though they violate human rights and are rarely devoid of practical effectiveness.
In this model, compulsory testing can be admitted as a condition of entry into other countries (even though these countries have the largest number of seropositive people in the world), isolation policies, mandatory testing of drug users, pregnant women, children to be adopted, prisoners etc.
Such policies seem to correspond to a totalitarian model of society where solutions are basically embodied in stricter penal laws.
It is important to note that many of today's criminologists have the willful transmission of HIV as an attempted murder and even consummate homicide.
A theoretical position that does not solve the problem of the epidemic.
In addition, the demands of social groups for citizenship in Brazilian society have been accompanied by a strong repressive criminal model, such as in the case of landless workers.
Likewise, the demands of people living with HIV / AIDS have been repressed under the mantle category of the "disease that transmits the disease".
The so-called liberal model 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, the valuation of the emotional in the face of simple information, etc.
The prevention of the epidemic in this model is related to a greater assumption, not only of observance but of the realization of social rights of people with HIV / AIDS and of a large part of the population.
Thus, like the Weberian typology, the models are ideal in nature and can be seen interrelating, even symbolically, among the various social actors in the social construction of the epidemic.
AIDS and LEGALITY SONEGADA
It is the field of struggle for a minimum adequacy between formal and material rationality, as well as for the effectiveness of the unpublished demands of society, in the fight against oppression and social exclusion.
Edmundo Arruda Jr. maintains that "There is clear irrationalism when formalism is exacerbated without effective satisfaction of social demands, starting with employment, because work is the first condition of citizenship, in the happy idea of Tarso Genro".
We do not doubt that the divorce between material and formal rationality exudes true irrationalism of the system.
We disagree, however, with the authors when choosing work as the first condition of citizenship.
In view of the difficulty of establishing a scale of values and universally valid needs, we understand that there is no guarantee of the social values of work if such a right can not be exercised.
So, let's choose the health as a basic assumption for the exercise of work.
It seems to me that the very idea of choosing work as a central category denounces, with all due respect, the expressive work of the authors, an overvaluation of productive and industrial processes to the detriment of health and human existence itself.
Returning to the typology of suppressed legality, it corresponds, to a certain extent, to the need to radicalize democracy as a universal value.
Not representative democracy, merely formal, based on certainty and legal security, but as a sense of the product of social conflicts and resistance to the production of a subjectivity that standardizes, stigmatizes and nullifies.
In the legality suppressed democracy can be seen as ceaseless creation of new rights and overcoming the limits of society.
We also understand that it is not possible to focus on social movements the responsibility for a new emancipatory rationality.
Nonetheless, these movements must be recognized as responsible for a strategy to radicalize the democratic game.
In this sense, the victory of HIV positive people and AIDS patients in the liberation of AZT, creation of human rights networks, access to medicines, re-scaling of the doctor-patient relationship, creation of a drug policy based on harm reduction, etc.
However, today there is a process of "co-optation" by the State of former leaders and seropositive people who work in the municipal STD / AIDS programs, with important victories for the movement.
Finally, the importance of social movements lies not only in the realization of rights, but in the necessary creation of an autonomous subjectivity, resistant to social massification.
Hence, the strength of community-based movements in the movement of a singularity and subjectivity, transgressors of the repressive mechanisms of cultural identity.
Thus, if it is true that we deny an emancipatory rationality inherent in social movements, it is necessary to see some of these movements as points of rupture of the dominant personality model.
Thus, if it is essential to ensure the work of HIV positive people and AIDS patients, it is also necessary to circulate their desires and social demands, rebuilding the face of the epidemic and these people so stigmatized.