Administrative Law methods: between discretion and constitution

Author(s)

Marco Antônio Moraes Alberto

• Document type: Doctoral Thesis
• Press: São Paulo.
• Institution: Universidade de São Paulo (USP). Faculdade de Direito (FD/SBD)
• Defense date: 2023-02-01

Examining board members

Vitor Rhein Schirato; Fernando Dias Menezes de Almeida; Patricia Ferreira Baptista; Celso Fernandes Campilongo; Fabrizio Fracchia; Juliana Bonacorsi de Palma

• Advisor: Vitor Rhein Schirato

Abstract

THE PURPOSE OF THIS THESIS is to discuss the development of the administrative law method within the legal order. To this aim, the thesis resorts to the concept of administrative regime, understanding it as an element of structuring the power of the State in the legal system, and a strategy of self-differentiation of administrative law in relation to the other branches of law. I argue that the administrative regime composes the social semantics through which administrative law thematizes (i) its difference from politics, and (ii) its difference from common law (usually associated with private law). With this starting point, in the first part of the thesis, I extract from the concept of administrative regime an analytical method to examine its possible contents. This method is composed of five criteria, divided into two large groups. The first one is formed by three structuring criteria, which reflect the construction in administrative law of its difference regarding the political power. They are: (i) the administrative organization (the legal distribution of political power); (ii) the administrative functions (the legal enumeration of the distinctive public functions); and (iii) the means of administrative action (the constitution of the power institutions in which political power can be legally exercised and accepted). The second group is formed by two distinctive criteria, which reflect the specific difference of administrative law regarding other branches of law. They are: (iv) the specificity of administrative law within the legal order, and (v) the hierarchical (or not hierarchical) position occupied by administrative law in relation to common law. In the second part of the thesis, I contrast these five criteria in light of two distinct semantics, on the basis of which administrative law can be methodologically configured: discretion and constitutionality. The question what should be the method of administrative law? is then answered in view of the constitutional architecture and the legal techniques used by each of the semantics for shaping administrative law. The contrast between the normative bases and key institutions of each of them makes possible to highlight their social meaning: discretion as a tool for judicial management of the asymmetry between law and politics, and constitutionality as an attempt to balancing law and politics by the means of a constitutional definition of public obligations and legal mechanisms for their judicial control. This reflection, though developed in a theoretical framework, highlights the relevance of political jurisprudence as a critical variable to the debate concerning what we expect (and what should we expect) from Brazilian contemporary democracy. (AU)

• FAPESP's process: 17/13539-6 - The legal semantic architecture of public administration: between discretionary power and constitutionality
• Grantee: Marco Antônio Moraes Alberto
• Support Opportunities: Scholarships in Brazil - Doctorate (Direct)