Argumentation, indeterminate juridical terms and discretionary powers in Brazilian public administration / ArgumentaÃÃo, termos jurÃdicos indeterminados e discricionariedade na AdministraÃÃo PÃblica brasileira

AUTOR(ES)
DATA DE PUBLICAÇÃO

2004

RESUMO

With the purpose of analyse the relationship between rethoric and argumentation relatively to the discretionary scopes execised by Brazilian public administration, we will try to demonstrate that the administrative decision formation process that become from de exercise of these scopes is not relacted to a demonstrative syllogism, because any juridical argumentative procedure encloses two moments (the real decision-making, based on extra-juridical points, and the explanation of the presumed conclusion supports). To avoid possible detours in this procedure, the regulation authority must requires motivation (other external justification) of the acts. If the authority verifies that internal justification does not match to the intention for whom the decision freedom was allowed, it must declar null the act to guarantee the employ of the judicial general protection principle. Rights or collective interests without possibility of beeing controlled by the judicial power should not last. The State of Right conception presupposes the right of effective judicial general protection, although it refers to the state administrative activity, hypotesis in which the administration decision will not be replaced by other from the judiciary authority, but by the one that should have been employed if the detour have not been verified

ASSUNTO(S)

controle direito argumentaÃÃo discretionary control discricionariedade argumentation

ACESSO AO ARTIGO

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