Devido processo legal e redução da discricionariedade administrativa

AUTOR(ES)
DATA DE PUBLICAÇÃO

2008

RESUMO

The main goal of this work is to explore normative connections between the due process clause, as stated in the Brazilian Constitution (CF 5, LIV), and the reduction of administrative discretion when it comes to deciding particular cases. The relevance of the subject lies on the need of defining criteria for judicial review of discretionary administrative action, in order to secure and preserve both administrative decision-making and judicial reviewing powers. The working hypothesis is that due process of law provides a sound normative basis for a rule forbidding arbitrary display of powers in Brazilian law. This is so because due process clause requires in decision-making a kind of cognitive, volitive and argumentative process with the basic attribute of rationality. Thus all the limits imposed by the law on administrative discretion could be placed under the due process clause. Furthermore, due process could be viewed as grounds for a systematic exposition of vicious discretionary actions, including not giving reasons for action and poor correlation of fact-findings and legal norms. Robert Alexy s theory of legal principles was adopted as a landmark. Brazilian and foreign production on administrative discretion was taken into account as well, in an attempt to overcome the loopholes of legal positivism s description of how the law is applied. Whenever it was possible, we managed to use case study methods to uncover legal argumentation structures and the way fact-findings and legal norms correlate. As a result, we built a system of vicious discrectionary actions

ASSUNTO(S)

controle jurisdicional -- brasil administrative action due process of law argumentação jurídica poder discricionario -- brasil função administrativa administrative function direito judicial review ato administrativo discretion legal argumentation discricionariedade devido processo legal -- brasil

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