A omissão federal quanto à regulamentação da maconha medicinal no Brasil e a autopoiesis do direito: o futuro é canábico, mas e o presente?

Abstract

The present dissertation has as its theme the regulation of medical marijuana in Brazil, highlighting the federal omission on the subject, especially regarding the public distribution of these drugs, even in the face of a growing number of patients who use it, as well as the consolidation of scientific studies related to the topic. We work with the hypothesis that there is, in Brazil, an inertia of the federal legislation on the matter, reflecting a national prohibitionist policy on the use of marijuana, rooted in cultural racism, which configures a true barrier to the right of access to medical marijuana widely. The general objective is to explore the construction of the right to health in Brazil, especially through the resumption of the history of the emergence of pharmacy in the world, pointing to the use of plants and natural resources, with emphasis on medical marijuana. In this sense, we seek to analyze the judicial action on the subject, specifically the phenomenon of judicialization of health. The study is divided into four parts, the first of which is dedicated to the study of the right to health and its legal framework, especially in the national legal system; at the same opportunity, an analysis of the history of pharmacy was sought. In the next chapter, focusing on the handling of marijuana from its primitive use, through its prohibition and rescue of its therapeutic use. Subsequently, the theory of social systems and the institutes of structural coupling and overcommunication were analyzed, highlighting the existing communications between Law and Political systems, leading to the violation of the principle of separation of powers. Finally, the phenomenon of the judicialization of health was studied, especially linked to access to medicines extracted from marijuana, in quality showing the existing structural coupling/ overcommunication. This research has as its main theoretical reference the work of Niklas Luhmann, about the theory of social systems, and the lessons of Lucas Oliveira and Natália de Campos, about the regulation of medical marijuana in Brazil. For that, a methodology based on the writings of these authors was used as a basis, as well as on the contribution of other authors who discuss similar themes, forming a qualitative approach of theoretical-bibliographical bias; in addition, a quantitative approach was also used, with the objective of collecting information related to the judicialization of health in Brazil and the number of patients currently linked to associations that aim to facilitate the medical use of marijuana in Brazil. The results indicate that, given the federal legislative omission, the right to health of marijuana users in Brazil is especially limited and classist, being accessible only to those who have considerable financial conditions, distancing themselves from most of the Brazilian population. Finally, the conclusive considerations aim to point out and provoke reflections from the research, mainly because it is a subject of great social prejudice, instead of really closing a definitive conclusion on the subject.