A discricionariedade (administrativa) à luz da crítica hermenêutica do direito

Abstract

The study that is here summarized has scoped the uncovering of the phenomenon that represents the notion of administrative discretion in Brazil, which generates a theoretical trap which leads to the conclusion that, to a large extent, administrative acts, once they have a political nature, would not be materially controllable by law, except for aberration. A lot of that still comes from a low speech of separation of powers, which could’t be violated by an act of control on the part of any of the powers, other than where issued the contested act. This gives space for administrative activity, rather than having guaranteed its democratic legitimacy and the Republican right, begins to have his illegitimacy covered up by a straight law, that increasingly promotes the maintenance of social dominations, typical of Brazil and Latin America. This, in a large extent, is provided by a Theory of Law that remains trapped in a philosophical paradigm, outdated and incompatible with the democratic State of Law required by the Constitution of 1988: the philosophy of consciousness. Many contemporary jus administrative speeches, as the one that favors the managerial paradigm of public administration, at the end favors the abundance of principles, which will serve as an alibi for the taken administrative decisions, at the exact extent which are considered in their teleological facet, like true optimization requirements and not on your deontological bias. From there the administration (present in all powers) possessed a normative legal permission to act in the manner that best understand, with what the law becomes to chancellor, the plurality of responses, which are considered as belonging to a political sphere. The administrative activity of the State, especially in Brazil, where it’s possible to be verified the influences of cordiality, patriarchy and patrimonialism estamental, as spoken by Buarque de Holanda, Gilberto Freyre and Raymundo Faoro, is amenable to assimilation to will to power, approached by Nietzsche, based on his concept of nihilism. In order to achieve the coveted democratic State of Law, which necessarily goes through a steady state performance, imperative that recovers the notion of administrative activity, directly and completely bound to the Law. This Law must have a transformer bias, of projection, for what you have as a response to Critical Hermeneutics, Law inaugurates by Padman Streck, founded on philosophical hermeneutics/philosophy hermeneutics by Hans Georg Gadamer/Martin Heidegger and the integrity and consistency of law, by Ronald Dworkin, who claims the fundamental right to correct answers. What largely if does is demonstrate that this requirement is perfectly appropriate in the sphere of administrative activity and it’s discretion in nothing differs from the judicial discretion, especially in its role as an alibi for the relativism and for the seal and maintenance of odious dominations.