scholarly journals A EVOLUÇÃO DO CONTROLE JURISDICIONAL DA DISCRICIONARIEDADE ADMINISTRATIVA E SEUS REFLEXOS JURISPRUDENCIAIS

2019 ◽  
Vol 2 (55) ◽  
pp. 516
Author(s):  
Lauro ISHIKAWA ◽  
Clóvis Smith FROTA JÚNIOR
Keyword(s):  
Rule Of Law ◽  
Administrative Law ◽  
Administrative Discretion ◽  
The Rule Of Law ◽  
Judicial Control ◽  
De Se ◽  
Deductive Method ◽  
Direct Linkage ◽  
Jurisdictional Control ◽  
Legal Concepts

RESUMO O presente artigo discorre sobre a evolução do controle sobre os atos administrativos discricionários, em especial a sindicabilidade do “mérito” destes, perpassando as diferentes teorias surgidas, desde a consolidação da ideia de Estado de Direito. Logo após, discorre-se sobre a admissão do controle judicial quanto aos elementos vinculados do ato, e, em seguida, sobre esse controle a partir de parâmetros implícitos da lei. Posteriormente, discorre-se sobre a teoria da vinculação direta aos princípios e dos atos “vinculados” por conceitos jurídicos indeterminados. Por último, aborda-se a teoria do enfoque jurídico-funconal, para, então, concluir pela possibilidade de se verificar uma tendência de sistematização, no sentido de apontar alguns parâmetros para o controle jurisdicional da discricionariedade administrativa. É utilizado o método dedutivo, por meio de pesquisa realizada em legislação, doutrina e jurisprudência das Cortes Superiores. PALAVRAS-CHAVE: Direito Administrativo; Ato Administrativo; Discricionariedade; Controle Jurisdicional; Mérito do Ato; Conveniência e Oportunidade. ABSTRACTThis article discusses the evolution of the judicial control over discretionary administrative acts, especially the syndicability of the "merit" of these acts, crossing the different theories that have emerged since the consolidation of the idea of the rule of law. After discussing this judicial control in face of the rule of law, the admission of judicial control on the elements of the act is analyzed, and then, this control from implicit parameters of the law. Subsequently, there is a discussion of the theory of direct linkage to principles and "bound" acts by indeterminate legal concepts. Finally, it is discussed the theory of the legal-functional approach, and then, conclude that there is a tendency to systematize, in order to point out some parameters for the jurisdictional control of administrative discretion. The deductive method is used, through research conducted in legislation, doctrine and jurisprudence of the Superior Courts. KEYWORDS: Administrative Law; Administrative Act; Discretion; Judicial Control; Merit of the Act; Convenience and Opportunity.

scholarly journals Conceitos jurídicos indeterminados e sua margem de livre apreciação legal

2016 ◽  
Vol 1 (1) ◽  
Author(s):  
André Saddy
Keyword(s):  
Rule Of Law ◽  
Administrative Law ◽  
Structural Components ◽  
Administrative Discretion ◽  
Legal Concept ◽  
The Rule Of Law ◽  
Legal Term ◽  
Legal Concepts ◽  
Technical Idea

<p><strong>CONCEITOS JURÍDICOS INDETERMINADOS E SUA MARGEM DE LIVRE APRECIAÇÃO LEGAL</strong> <strong></strong></p><p><strong>Resumo:</strong> O presente trabalho visa evidenciar que a subjetividade ou autonomia pública é distinta da clássica discricionariedade, abordando o surgimento de tal concepção, a superação da ideia de que tais conceitos era incontroláveis, as distintas correntes que admitiam ou não uma margem de livre apreciação isenta do controle judicial, a localização da margem de livre apreciação nos componentes lógico-estruturais da norma jurídica, para em seguida, estabelecer uma concepção de termo legal ou conceito jurídico indeterminado evidenciando as distintas incerteza semântica responsáveis pelas dificuldades de determinação dos sentidos normativos focando em especial na errônea ideia da discricionariedade técnica. Também se abordará o conceito de prognose e sua relação com os conceitos jurídicos indeterminados. Por fim, estudar-se-á a estrutura dos conceito jurídicos indeterminados, a teoria da multivalência ou da duplicidade e a teoria da univocidade ou da unicidade para concluir com nossa posição quanto aos conceitos jurídicos indeterminados.</p><p><strong>Palavras-chaves:</strong> Conceitos Jurídicos Indeterminados; Mérito Administrativo; Discricionariedade Administrativa; Discricionariedade Técnica; Autonomia Pública.</p><p><strong>CONCEPTS INDETERMINATE AND MARGIN OF YOUR FREE ASSESSMENT </strong></p><p><strong>Abstract:</strong> This study aims to show that subjectivity or public autonomy is distinct from classical discretion, addressing the emergence of such a conception, overcoming the idea that such concepts was uncontrollable, the different currents that admitted or not a margin of discretion exempt from control judicial, the location of the margin of discretion in the logical-structural components of the rule of law, to then establish a conception of legal term or indeterminate legal concept, demonstrating the distinct semantic uncertainty responsible for the difficulties of determining the normative meanings focusing in particular on erroneous technical idea of discretion. It also will address the concept of prognosis and its relation to the indeterminate legal concepts. Finally, it will be studied the structure of indeterminate legal concept, the theory of multivalency or duplicity and the theory of univocity or uniqueness to complete with our position on indeterminate legal concepts.</p><p><strong>Keywords:</strong> Indeterminate Legal Concepts; Administrative law; Administrative discretion; Discretion technique; Public autonomy.</p><p><strong>Data da submissão:</strong> 08/05/2016                   <strong>Data da aprovação:</strong> 12/06/2016</p>

The Old Despotism

1999 ◽  
Vol 33 (2) ◽  
pp. 169-192
Author(s):  
The Rt. Hon. Lord Bingham of Cornhill
Keyword(s):  
Rule Of Law ◽  
Administrative Law ◽  
The Rule Of Law ◽  
Judicial Control ◽  
Chief Justice ◽  
Richter Scale ◽  
Memorable Event ◽  
Newspaper Articles

Seventy years ago there appeared in Britain a series of newspaper articles, which in the autumn of the year were published in book form. To this book the author, perhaps drawing on his earlier career as a journalist, gave a headline-catching title: The New Despotism. In the Richter scale of world events this publication was not, as even the most introverted lawyer would have to acknowledge, the most memorable event of 1929. But on the more specialised Richter scale which measures movements in the landscape of constitutional and administrative law, and standards of judicial conduct, a noticeable tremor was registered. For the author of The New Despotism was Lord Hewart of Bury, who held office as Lord Chief Justice of England, and the book was a coruscating attack on what he pejoratively called the bureaucracy, the great departments of state, whom Hewart accused of acquiring and exercising legislative and administrative powers in a manner which circumvented Parliament, excluded judicial control through the ordinary courts and undermined the rule of law.

Good Governance

2019 ◽  
Author(s):  
Henk Addink
Keyword(s):  
South Africa ◽  
Rule Of Law ◽  
Good Governance ◽  
National Level ◽  
Administrative Law ◽  
Modern State ◽  
The Rule Of Law ◽  
The Third ◽  
Legal Perspective ◽  
Further Development

The pivotal aim of this book is to explain the creation, development, and impact of good governance from a conceptual, principal perspective and in the context of national administrative law. Three lines of reasoning have been worked out: developing the concept of good governance; specification of this concept by developing principles of good governance; and implementation of these principles of good governance on the national level. In this phase of further development of good governance, it is important to have a clear concept of good governance, presented in this book as the third cornerstone of a modern state, alongside the concepts of the rule of law and democracy. That is a rather new national administrative law perspective which is influenced by regional and international legal developments; thus, we can speak about good governance as a multilevel concept. But the question is: how is this concept of good governance further developed? Six principles of good governance (which in a narrower sense also qualify as principles of good administration) have been further specified in a systematic way, from a legal perspective. These are the principles of properness, transparency, participation, effectiveness, accountability, and human rights. Furthermore, the link has been made with integrity standards. The important developments of each of these principles are described on the national level in Europe, but also in countries outside Europe (such as Australia, Canada, and South Africa). This book gives a systematic comparison of the implementation of the principles of good governance between countries.

scholarly journals Posner’s Folly: The End of Legal Pragmatism and Coercion’s Clarity

2018 ◽  
Vol 7 (2) ◽  
pp. 365-400
Author(s):  
Joseph D’Agostino
Keyword(s):  
Rule Of Law ◽  
Essential Elements ◽  
Public Confidence ◽  
Moral Legitimacy ◽  
The Rule Of Law ◽  
Positive Law ◽  
Diverse Society ◽  
The Concept Of Law ◽  
Legal Concepts ◽  
Legal Pragmatism

Abstract Highly influential legal scholar and judge Richard Posner, newly retired from the bench, believes that law is irrelevant to most of his judicial decisions as well as to most constitutional decisions of the U.S. Supreme Court. His recent high-profile repudiation of the rule of law, made in statements for the general public, was consistent with what he and others have been saying to legal audiences for decades. Legal pragmatism has reached its end in abandoning all the restraints of law. Posner-endorsed “epistemological democracy” obscures a discretion that is much worse than the rule of law promoted by epistemological authoritarianism. I argue that a focus on conceptual essentialism and on the recognition of coercive intent as essential to the concept of law, both currently unpopular among legal theorists and many jurists, can clarify legal understandings and serve as starting points for the restoration of the rule of law. A much more precise, scientific approach to legal concepts is required in order to best ensure the rational and moral legitimacy of law and to combat eroding public confidence in political and legal institutions, especially in an increasingly diverse society. The rational regulation by some (lawmakers) of the real-world actions of others (ordinary citizens) requires that core or central instances of concepts have essential elements rather than be “democratic.” Although legal pragmatism has failed just as liberal theory generally has failed, the pragmatic value of different conceptual approaches is, in fact, the best measure of their worth. Without essentialism in concept formation and an emphasis on coercion, the abilities to understand and communicate effectively about the practical legal world are impaired. Non-essentialism grants too much unwarranted discretion to judges and other legal authorities, and thus undermines the rule of law. Non-essentialist or anti-essentialist conceptual approaches allow legal concepts to take on characteristics appropriate to religious and literary concepts, which leads to vague and self-contradictory legal concepts that incoherently and deceptively absorb disparate elements that are best kept independent in order to maximize law’s rationality and moral legitimacy. When made essentialist, the concept of political positive law shrinks, clarifies, and reveals its true features, including the physically-coercive nature of all laws and the valuable method of tracing the content of law by following its coercive intents and effects.

A PROPÓSITO DEL ORIGEN Y EVOLUCIÓN DEL RÉGIME ADMINISTRATIF

2010 ◽  
pp. 767-785
Author(s):  
JESÚS LEGUINA VILLA
Keyword(s):  
Rule Of Law ◽  
Administrative Law ◽  
The State ◽  
Point Of View ◽  
The Rule Of Law ◽  
Public Rights ◽  
Statutory Power ◽  
Administrative Courts ◽  
Ancien Régime ◽  
Principle Of Legality

El Derecho Administrativo es un producto propio y específico del constitucionalismo nacido tras la ruptura revolucionaria con el Antiguo Régimen, que resultará profundamente condicionado por las circunstancias sociopolíticas del país, Francia, donde nació. El Régimen Administrativo del Estado de Derecho se conforma a partir del principio de legalidad, de la potestad reglamentaria, de las libertades públicas y los derechos públicos subjetivos, de la responsabilidad de la Administración y del control a través de la jurisdicción contencioso-administrativa. Administrazio Zuzenbidea konstituzionalismoaren berezko produktua espezifikoa da, Frantziako Iraultzak Erregimen Zaharrarekin apurtu ostean sortua eta herrialde horren egoera soziopolitikoak sakon baldintzatua. Zuzenbide Estatuaren Administrazio Araubideak osatzeko hauek guztiak hartzen dira abiapuntu: legezkotasun-printzipioa, arauzko ahala, askatasun publikoak eta eskubide publiko subjektiboak, Administrazioaren erantzukizuna eta administrazio-auziarekiko jurisdikzioaren bidez egiten den kontrola. Administrative Law is a product typical and specific of the constitutionalism born after the revolutionary break-off with the Ancien Regime, which was deeply conditioned by the sociopolitical circumstances of the State, France, where it was born. The Administrative Regime of the Rule of Law was made up from the point of view of the principle of legality, the statutory power, public freedoms and subjective public rights, the liability by the Administration and the review by means of the contentious administrative courts.

Administrative Law

2004 ◽  
Author(s):  
Jeffrey Jowell
Keyword(s):  
Twentieth Century ◽  
Great Britain ◽  
Procedural Justice ◽  
Rule Of Law ◽  
State Power ◽  
Administrative Law ◽  
Constitutional Rights ◽  
Stages Of Development ◽  
The Rule Of Law ◽  
Legal Control

This chapter examines the stages of development of administrative law in Great Britain during the twentieth century, describing the different attitudes towards the exercise of state power and its legal control over the century. It explains that the century began with a concern for procedural justice and a particular concept of the rule of law, and ended with judicial constraints upon both the procedures and the substance of official decisions, justified by constitutional rights.

The Rule of Law and Good Governance

2019 ◽  
pp. 75-90
Author(s):  
Henk Addink
Keyword(s):  
Rule Of Law ◽  
Good Governance ◽  
Common Law ◽  
The State ◽  
Fundamental Rights ◽  
The Rule Of Law ◽  
Judicial Control ◽  
The Common ◽  
The Government ◽  
Continental Tradition

The concept of the rule of law has different—common law and continental—historical roots and traditional perspectives. The common law tradition is more focused on limiting the powers of the state, whereas the continental tradition focuses on not just to limit but also to empower the government. But both systems have a focus on the rule of law. The rule of law in the classical liberal tradition is based on four elements: legality, division and balance of powers, independent judicial control, and protection of fundamental rights. The differences between rule of law and rechtsstaat are: different concepts of the state, mixed legal systems and different approaches of a constitution, and different perspectives on human rights. There are two levels of development: a model in which law is a way of structuring and restricting the power of the state, the second level is more subjective and has important individual positions. The concept of good governance related to these developments makes clear the need to broaden the concept of the rule of law.

An Overview of Good Governance

2019 ◽  
pp. 15-24
Author(s):  
Henk Addink
Keyword(s):  
Rule Of Law ◽  
Good Governance ◽  
Administrative Law ◽  
The State ◽  
Institutional Framework ◽  
The Rule Of Law ◽  
Administrative Legislation ◽  
The Government

Good governance is needed because of legislative gaps, prevention of corruption, maladministration, and mismanagement, and fragmentation of administrative law norms. The concept of good governance has been developed in addition to aspects which can already be found in the rule of law and democracy concepts but are also related to the institutional framework of the government. The term ‘government’ is used for all the powers in the state; the administration is only one of these powers. These powers must fulfil certain norms, principles which sometimes are unwritten and developed by the judiciary or the ombudsman but more and more codified in the frame of the general (administrative) legislation. All the institutions of the government are involved in the development of these principles of good governance. There is not only a separation between the powers of the state, but more and more there are interactions between these powers in the development of principles of good governance and, hence, there is a balance between these principles. Therefore, there are different producers and sources of good governance.

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