The earliest litigation and the most prominent-in terms of volume, economic impact, and academic attention-in Brazil deals with health and access to healthcare. Claimant’s legal arguments tend to be premised on some combination of the right to life (art. 5), the general guarantee of social rights (art. 6), the right to health (art.196), and the obligation of the state to provide a unified system of healthcare (art. 198) outlined in the Constitution along with Law 8080 of 1990, the public healthcare system’s (Sistema Único de Saúde or SUS) enabling legislation and, in the case of HIV/AIDS-related claims, Law 9313 of 1996 which mandates the free provision of antiretroviral medication.

For several years after the promulgation of the 1988 constitution the judiciary was largely unwilling to grant social rights claims. This initial reticence is attributable to two key factors: the conservatism of the senior, appellate judiciary and the professional norms of the judiciary as a whole that precluded transformative judgements in the area of social rights (or any other area of the law) without a coherent legal doctrine that could be used to justify granting such claims. Because there was no acceptable legal doctrine or interpretation of the social rights guarantees in the 1988 Constitution that would allow them to do so, regardless of their personal or professional desire to do so. As is the case for most countries in Latin America, Brazil has a long history of judicial review, although the willingness and ability of the judiciary to effectively deploy it has varied substantially in relation to the country’s political climate.10 However, to the extent that the judges rendered decisions contrary to the will of the executive, the theoretical basis for the authority to do so was premised on liberal-democratic notions of negative rights such as the prevention of unlawful detention; existing doctrine was either ambivalent toward the positive components of rights obligations or antithetical to their justiciability.

In terms of legal reasoning, two principal arguments were initially successful against social rights claims with positive implications (e.g. the provision of medicines). The first argument was that these rights were programmatic rights; that they were not directly binding and required enabling legislation. If and when the legislature passed law or regulations to achieve these ends, the courts could legitimately decide on whether or not the State was meeting the obligations imposed by the legislature. Otherwise, the social rights were not directly applicable in the way that civil and political rights were. The second argument, also a classical constitutional objection, is based on the separation of powers doctrine. It is, so the argument goes, not the place of the courts to dictate policy to the executive and legislature. These two arguments, particularly the former, were generally held to be persuasive until the mid-1990s. As a result, there was little in the way of successful social rights litigation during this time.11

This approach began to change in the mid-1990s when decisions of the Rio Grande do Sul and São Paulo TJs (state appellate courts), as well as the STF (Brazil’s apex court for constitutional matters) began to reject these arguments.12 A decision of particular note from the STF was Minister Celso de Mello’s preliminary judgement, subsequently adopted unanimously by the plenary Court, in PET 1246.13 Originating in the State of Santa Catarina, the Court’s decision required public funding for an experimental treatment administered in the U.S. for Duchenne muscular dystrophy, a degenerative disease affecting children. With respect to the justiciability of social rights, the key element of the decision is Minister de Mello’s assertion that in choosing “between protecting the inviolability of the right to life, an inalienable Constitutional fundamental right, and a financial and secondary interest of the State, I believe-once this dilemma is established-ethical and legal reasons leave the judge with only one possible option: unwavering respect for life.”14 Not all judges and not all courts were quick to follow, but a general rejection of the “separation of powers” and then the “programmatic rights” arguments seems to have become the consensus by about 1999.15

Early (successful) litigation focused on demanding public provision of medicines, predominantly antiretrovirals, to HIV/AIDS patients as a part of a loosely coordinated effort on the part of civil society organizations, health professionals and reform-minded elements in government ministries and agencies.16 The form of the claims tended to run as follows: the claimant has a particular medical condition that puts their life or health at risk, a particular treatment or medicine would improve their health or chances of survival and, as such, the state has a responsibility to ensure they receive that treatment or medicine. In response, state parties tend to argue that judicial rulings in the area would violate the separation of powers, that there are reasonable protocols in place to allocate the health system’s finite resources, that budgetary and legal limitations (e.g., the prohibition on the use of public funds for non-budgeted purposes) preclude the immediate provision of all treatments and medicines to all individuals and that the constitutional rights relating to health must be interpreted and applied as a part of the constitution as a whole, cognizant of the reality of finite resources and competing rights and interests.17

The fragmented nature of the Brazilian judicary, the limited utilization of fully electronic case management systems, and the inconsistency and incompatibility of case reporting systems means there is no precise picture of the volume or outcomes of these types of claims for the country as a whole. A large body of research focused on particular states, courts, treatments, or some combination of these, however, indicates that the volume of cases is quite high and that claimant success rates are extremely high. Early empirical work in this area found that claimants succeeded 82-100% of the time, with the majority of studies indicating success rates of more than 90%.18 Although the methodology employed by most of these studies in the collection of data means that they cannot be, strictly speaking, considered to be representative samples, the congruence of the results is notable. These findings are also largely supported by more recent studies based on larger and more representative samples. For example, a 2013 study of right to health decisions of the State Appellate Courts (TJs) of Rio de Janeiro, Minas Gerais, and Pernambuco found an overall success rate of 97.8%,19 another study in the State of Paraná found that cases filed in 2009 had success rate of 81% at the trial level and 92% at the appellate level.20 More recently, however, there is evidence of a slight decline in success rates. In a study of lawsuits seeking public provision of medicines filed in the Federal Court of the State of Paraná in 2014, the claimant success rate of those that had been resolved at the time of the study’s publication was only 75%.21 At the STF, Arguelhes and Hartmann identified 74 cases heard by one of the three collegiate bodies that dealt with the right to health on the merits of the case (as opposed to procedural matters) between 1988 and 2009. In all but one of these cases the state party was required to provide some or all of the requested medical treatment.22 The same study also found an almost non-existent engagement with the academic literature-either legal-doctrinal or social scientific-relating to positive rights and the nature of state obligations with respect to the realization of such rights.

In contrast, collective claims relating to the right to health are both rare and have met with very little success. For example, in their study of social rights litigation, Hoffman and Bentes identified 7,100 right to health cases decided by a sample of State Supreme Courts,23 the STF and the STJ between 1994 and 2004.24 Only 2% of these were collective claims. Although Brazilian courts are perfectly willing to wholeheartedly involve themselves in healthcare issues when the claimant is an individual, in the context of collective claims this is very much not the case. Interestingly, and in direct contrast to the jurisprudence in individual claims, decisions in collective claims tend to invoke arguments about the scarcity of resources and the poor position of courts to second guess the decisions of health authorities as reasons to exercise restraint.25 In reference to the issue of collective claims, Ferraz concludes that,

The Brazilian judiciary… seems to be an obstacle to collective lawsuits in the field of health. There is a clear resistance, from their part, even when they grant the request of the plaintiff, to determine with any precision what the state is actually obliged to comply with. They are clearly more comfortable to issue more assertive and determined orders when the case is individual.26

Prado, in surveying right to health litigation trends, puts the matter more bluntly: “Brazil has a judiciary that is not open to collective claims.”27

Right to education claims are primarily grounded in art. 208 of the 1988 Constitution, which dictates that the state has a duty to guarantee free and compulsory basic education as well as early childhood education and that “the Government’s failure to offer compulsory education or offering it irregularly implies liability on the part of the competent authority.” Litigation in this appears to have began in earnest in the early to middle 2000s,28 although the São Paulo State Public Ministry did file a number of cases dealing with education during the 1990s relating to age eligibility and catchment areas.29 Although there have been more collective cases filed in this area, individual claims are still the dominant form of action and the volume of litigation has been substantially lower than that of the right to health.30

A certain proportion of education cases have focused on access to institutions of higher education, but the bulk of claims, individual and collective, have dealt with primary and early childhood education. In the State of São Paulo, the Public Ministry successfully advanced a number of claims relating to daycare spaces in the early 2000s in the State Court system, but the rulings were not particularly effective-the state was unable to provide the spaces as it lacked the resources. With respect to collective cases, the judiciary was largely unwilling to engage. According to one scholar and activist involved with Ação Educativa, an education focused NGO,

Judges would answer the individual claim and completely ignore the collective claim. For example, if we stated we needed 1,500 [daycare] places for children in the State of São Paulo, the Judge would say ‘no can do, that is public policy.’ But, if we asked for a single place for a child, this was not seen as a problem.31

Similarly, a Public Defender engaged in right to housing litigation noted that in advancing collective claims, Public Defenders (and others) face a lot of judicial resistance, often in the form of references to the reserva possível, the separation of powers, and concerns about judicial activism in order to deny collective claims.

This, in turn, has led many, including the Public Defender’s Office, to focus predominantly on individual claims. The principal concern with individual litigation in the area of education is that rather than resulting in policy change, it has simply led to parallel lists. In general, all primary and pre-primary institutions have waiting lists. When a judge orders the executive to provide a place to a specific individual, all that happens is that they are given a priority status on the waiting list.32 More recently, however, there has been a notable success in the area of collective education claims. In December of 2013 the São Paulo State Court of Appeal (SPTJ), overturning the trial decision, ruled that the City of São Paulo was required to make 150,000 new child care spots available by 2016.33 This decision was the result of several years combined efforts of the Public Ministry, Public Defender’s Office, Ação Educativa, and other NGOs. One of the key distinguishing features of the case was the amount of research and data presented by the claimants that clearly identified underserviced areas and gaps in coverage at a level of detail not previously seem.34 At present, however, the implementation of this decision and whether it will act as a guide for subsequent claims is unclear.

In contrast to right to health and right to education litigation, the right to housing is generally invoked as a shield rather than a sword in Brazil. That is, it is most frequently used as a defense against eviction orders rather than an attempt to exact a good or benefit directly from the state. Right to housing litigation also appears to be the least commonly advanced and to have had the least impact of the three rights.35 At least part of the reason for this is attributable to the seeming unwillingness of the judiciary to directly abrogate individual property rights.36 That said, as a general rule, a primary residence that has been used as collateral against a loan cannot be seized on the basis of a right to housing.37 Additionally, in the lower courts, eviction orders have be known to be accompanied by temporary provision of a stipend to the evicted party in an amount deemed sufficient to pay for alternative accommodation. In practice, however, this does not generate additional housing or security of tenure, but simply results in the evictee moving into different irregular housing where they remain exposed to the same precarity.38

Despite some victories in the trial courts-which have been overturned on appeal-and a certain willingness to experiment by progressive judges, scholars such as Mészáros suggest that there is a heavy strain of conservatism present in the Brazilian judiciary that is associated with the enforcement of liberal conceptions of private property and equates attempts to modify that understanding (e.g., through protest), as attacks on the rule of law. This approach has a chilling effect on land reform as it introduces a variety of procedural requirements, increases the cost of expropriation, and plays into a narrative of occupiers as threatening the rule of law.39

The right to health was also the first social right to attract judicial attention in South Africa.40 The parameters of the right are laid out in section 27 of the 1996 Constitution which stipulates that everyone has the right to, inter alia, “access to health care services, including reproductive health care,” requires the state to progressively realize the guarantee via “reasonable legislative and other measures within its available resources,” and unqualifiedly asserts that “No one may be refused emergency medical treatment.”

The first major case was brought by Mr. Soobramoney, a 41-year-old diabetic man with chronic renal failure as well as a number of other serious medical issues who had been denied the dialysis necessary for his continued survival. The resources of the renal clinic in question-the only one in the province-were limited and it was only able to provide dialysis to 30% of those requiring it. In response, the clinic had employed nation-wide guidelines to prioritize access to treatment for those with the best prospects of recovery. The applicant did not meet these criteria and sought an order from the High Court requiring the clinic to provide treatment.

In the High Court decision, Justice Combrinck determined that the Clinic had insufficient resources to treat all those requiring it, that the guidelines were not unreasonable, and that it was “not the function of this Court to direct the State to make additional funds available to the renal clinic so that the applicant and others may be treated” as that was a fundamentally political decision.41 Justice Combrinck also rejected the argument that the fact that the claimant would die without dialysis meant that this constituted an emergency situation. As such, he dismissed the application.

The decision was appealed to the Constitutional Court, which upheld the decision of the High Court. In so doing, Chief Justice Chaskalson also affirmed Justice Combrinck’s determination that it was not the place of the courts to interfere with the state’s allocation of resources. In light of the depth and diversity of need, he held, the state was required to make difficult decisions and in doing so “There will be times when this requires it to adopt a holistic approach to the larger needs of society rather than to focus on the specific needs of particular individuals within society.”42 The Soobramoney decision was a great disappointment to many human rights advocates, academics, and civil society organizations, many of whom who viewed the courts’ refusal to examine the reasonableness of the allocation of funding as an abdication of their responsibility.43

The second major right to health case dealt with by the Constitutional Court was Treatment Action Campaign,44 five years later. Rather than the availability of a service to a particular individual, TAC challenged the adequacy of government measures to address mother-to-child transmission of HIV. Specifically, the organization argued that restricting the distribution of Nevirapine, an antiretroviral drug, to a limited number of test sites was unreasonable in light of its previously demonstrated effectiveness and the fact that the state was receiving the drug at no cost. It also argued that the lack of a national plan for the prevention of mother-to-child transmission was a violation of its duty to progressively realize the right to health through legislative and other means.45 In response, the state argued that it did not have the resources to provide the full package of care it intended to provide with the drug at other location and that excessive distribution in the absence of that full package, might lead to decreased long-term efficacy and also presented a safety issue.46

In its decision, the Court held that the social rights in the constitution could not be construed so as to enable everyone to immediately demand the UN Minimum Core. Rather, they stipulated that government policy need only to reasonably seek to progressively bring about those rights and that courts were limited at best arbiters of policy decisions.47 While denying its ability to make policy, the Court asserted its authority to compel the state to act, holding that it was not a violation of separation of powers to compel adherence through injunction. Ultimately, the Court declared that the withholding of the drug was unreasonable, as the policy in place failed to provide a potentially lifesaving drug which could have been administered with little or no cost to the state.48 The government was ordered to remove the restrictions on the drug and facilitate its use, and “take reasonable measures” to extend counselling and testing facilities in hospitals. Although a number of human rights commentators were troubled by the Court’s rejection of the UN Minimum Core approach,49 this case was widely seen as (correctly) walking back the level of deference accorded the state in the area of healthcare and a promising continuation of the pattern it set in its landmark housing decision in 2000.

Although the right to health was the first social right engaged with by the Constitutional Court, it is the right to housing, largely relating to constitutionality of evictions, that has constituted the bulk of its attention in this area. The first of these cases came in 2000.50 In the Grootboom decision, the Court established the basis of its current “reasonableness” approach to the interpretation and application of South Africa’s constitutionalized social rights. The case concerned the residents of an informal settlement near Cape Town who were forcibly evicted and sought relief via the courts. In its decision, the Court recognized that state capacities are inherently limited and that immediate realization of rights such as the right to housing is not always possible. Rather, what is required is that the state pursues “reasonable” measures to give effect to those rights. The key element of the decision, however, was that the Court also indicated that if the state failed to do so, courts can and must enforce these obligations. The Court also provided some degree of guidance with respect to the parameters of reasonable: if measures taken fail to make provision for providing for the needs of the most desperate, the Court held, they may not pass the test of reasonableness.51As the government’s extant programs failed to make provision for temporary relief for the most disadvantaged, the Court issued a declaratory order requiring the state to devise and implement a program which provided relief (in terms of shelter) for the most desperate.

In subsequent cases, the decision to grant an eviction order has revolved around judicial consideration of whether, in the opinion of the court, “it is just and equitable to do so, after considering all the relevant circumstances.”52 As per the governing statute, these circumstances include whether land has been or can reasonably be made available by the state for the relocation of the evictees and the likely impact on groups, such as children and households headed by women, attracting special consideration.53 In this jurisprudence, the courts have emphasized the importance of meaningful engagement and consultation regarding the development of housing policies,54 the primary responsibility of the municipalities to provide alternative accommodation, 55 and the fact that the right to housing could justify temporarily limiting individuals’ property rights where eviction could lead to homelessness.56 Relatedly, the courts have also established that unreasonable delay on the part of the state in finding alternative accommodations or otherwise settling the issue with the property owner could attract “constitutional damages.”57 At the same time, the Courts have consistently maintained that they cannot be directly involved in the crafting of policy. Rather, the courts have restricted themselves to a largely procedural role, ensuring that the processes used to arrive at decisions take into consideration all relevant factors and that the decisions taken and actions based on those decisions are reasonable and taken in a timely fashion.

In contrast to Brazil, the right to education has not been the subject of a significant body of litigation. The small volume of cases that have been considered dealt with the broad parameters of the right, including whether tertiary education was included (it is not), and various issues relating to language of instruction.58 This is somewhat surprising in light of the serious issues facing South Africa’s basic education system. There are numerous examples of effective and well-organized publicly-funded schools in South Africa, including in areas affected by poverty. They are not, however, the norm. Key issues include lack of basic infrastructure and services such as libraries, computers, clean water, and electricity, well-trained teaching staff, and effective administrators.59 Over the past few years, however, a few issues relating to the right have been considered by the Courts.60 For example, in 2015 the Supreme Court of Appeal held that “that s 29(1)(a) of the Constitution entitles every learner at public schools in Limpopo to be provided with every textbook prescribed for his or her grade before commencement of the teaching of the course for which the textbook is prescribed” and that it was the responsibility of the provincial and National Departments of education to do so.61 At present, however, recent nature of the cases would make a sustained discussion of the jurisprudence or its effectiveness largely speculative.

In Brazil, the culture of the judiciary has historically been both conservative and formalist. Through the 1970s judges aimed to be strict interpreters of “the law.” At least in part, this was because of the protection from political interference offered by the approach. But it was also the product of a system of legal education and judicial selection that emphasized this approach as the correct way to fulfill the judicial function. The professoriate has traditionally been,69 and with notable exceptions continues to be,70 practicing lawyers for whom “[t]eaching is more like a hobby, with the main benefit being the prestige it offers.”71 Consequently, there is little emphasis placed on original research and a substantial resistance to change, both conceptually and pedagogically.72

The judiciary is a professional one, selected-as most Brazilian public positions are-by public examination. For the ordinary courts, examinations are specific to the jurisdiction and are both set and administered by the judiciary itself. The contents of the examinations have traditionally focused heavily on substantive knowledge of the law in force as opposed theoretical or conceptual knowledge. This approach has been criticized as resulting in a particular, narrow range of successful candidates who are familiar with doctrine but lack professional and administrative experience.73 In the State of São Paulo, for example, Brinks notes that critics of the system of judicial selection argue that the selection process privileges the memorization of existing doctrine at the expense of innovation, a preference that is seen to inhibit the development of socially conscious law.74

Nevertheless, by the mid-1980s, some judges began to confront the political establishment in the context of privatization. Although the STF generally overturned them, these decisions highlighted the relationship of law to social conditions and, to some degree, brought (and brings) into question the appropriateness of the strict legalist approach.75 By the early 1990s, a generation of more progressively minded lawyers and judges had populated the junior ranks of the legal profession. Along with a smaller, more senior group of similarly disposed judges they sought to use their skill and position to aid the disadvantaged and foster progressive change in Brazil.76 It seemed clear that the generous social rights guarantees entrenched in the 1988 constitution could be used to further these goals. However, the means of doing so without transgressing the boundary between law and politics instilled in them by their education and Brazilian judicial culture was not.

This confluence of events was a critical juncture-a point in time when two or more relatively stable trajectories are more or less equally possible and the factor(s) that result in movement along one trajectory over the other(s) are exogenous, and often somewhat arbitrary.77 Applying the concept to the Brazilian experience, I argue that more or less by coincidence, willing ordinary court judges encountered a mobilized set of organizations seeking to advance HIV/AIDS awareness and treatment and a willing-or at least sufficiently fragmented as to be unable to mount effective opposition78-set of domestic political institutions.79 These judges, then, were able to grant the individual claims for state provision of antiretrovirals in accordance with their positivist norms because, by conceiving of the rights as absolutes, they could be decided syllogstically without violating the separation of law and politics. This combination of a supportive judiciary and a willing, observant “support structure” proved an important force in Brazilian politics. Indeed, it is generally seen as the primary motivating force behind the passage of Law 9313 (approved in 1996), which provides antiretrovirals free of charge.80 More generally, Brazilian policy regarding HIV/AIDS is seen as highly successful, something that reflects well on the actions of the judiciary in this regard.81

Although the Brazilian legal tradition did not initially include substantive rights, the entrenchment of social rights in the 1988 Constitution coupled with the self-perception of the judicial community as a benevolent group of elites resulted in a desire and ability to use the law to aid those seeking the state-provision of antiretrovirals. In doing so, rather than challenging the fundamental assumptions about the nature of law as a separate, technical entity with objective answers, judges incorporated the right to health into the existing cannon, as an absolute principle. The initial success of the HIV/AIDS litigation strategy-that could succeed because it was a relatively clearly defined, limited policy with widespread support-established that approach as a viable means of achieving the twin goals of doing law and fostering progressive change. The acceptance of this norm effectively foreclosed engagement with socio-legal investigation of the effects of positive rights adjudication, domestically or internationally. Proportional or consequential reasoning were not in accordance with Brazilian legal culture; besides, the internal impetus for change had been satisfied.

The education, socialization, and professional norms of South African judges led them to approach social rights in a fundamentally different manner than their Brazilian counterparts. Three principal factors contributed to this difference and, in turn, to the divergent approach to social rights interpretation. The first was the relative amenability of the South African judges to the consideration of public policy and the process of balancing as compared to Brazilian judges. The South African courts did, like those in Brazil, exhibit a substantial degree of formalism during the authoritarian era. However, that formalism does not appear to have been as deeply ingrained in the judicial culture as it was in Brazil. Rather, it seems to have manifest in a subset of judges who, by virtue of judicial appointments being a discretionary power of the government of the day, were placed on the bench and assigned to the politically significant cases. As is the case in most jurisdictions, the bulk of the caseload was not politically sensitive. This meant that a relatively small number of sympathetic and/or compliant judges in the right positions could, and did, ensure that the majority of politically sensitive cases were heard by the “right people.”82 Nor was it as widely accepted in the broader legal community, as evidence by the variety and veracity of criticism of the apartheid legal order.83 More broadly, although common law reasoning and argumentation is quite adaptable to formalism, it is also capable-much more capable than at least the Brazilian variant of civil law reasoning, I would argue-of incorporating the type of public policy considerations and balancing of competing interests.

The second factor is the nature of legal education in South Africa. In South Africa, the professoriate is substantially more likely to engage in teaching as a full-time occupation and, in turn, to engage in research. The products of this research were often quite critical of the apartheid regime and developed a variety of legally-grounded strategies and approaches for opposing it.84 In addition, in contrast to the relatively limited pool of judges and defense lawyers engaged in anti-establishment lawyering in Brazil, the anti-apartheid movement was something approaching mainstream in the public law side of the legal academy, as evident in the affiliation of a number of legal clinics and research centres associated with the anti-apartheid movement that were affiliated with university law schools.85

The third is the difference in the nature of judging as a professional activity. South African judges are selected from the ranks of senior legal practitioners, traditionally those who had been accorded the title of Senior Counsel.86 Invariably, the Bench was a second career for those with both practice and life experience. This is a marked contrast to Brazilian judges of first instance, who tended to be young, steeped in formal reasoning, and have relatively limited experience outside of the formal study of law.

In combination, these factors produced a system of legal education, socialization, and professional norms that predisposed the judiciary to approach the issues raised by social rights adjudication in a more pragmatic, policy-oriented fashion concerned with maintaining a balance between the proper role of the courts and the necessity of giving effect to the transformative guarantees present in the Constitution.