Legalidade e a competência regulamentar da Administração Pública nos casos de ausência de lei disciplinadora de direitos fundamentais sociais

Abstract

The scope of this work is to analyze how the Brazilian Public Administration should act to give concreteness to the fundamental social rights provided for in the Brazilian legal system in cases of legislative omission. The question arises because, if, on the one hand, the 1988 Federal Constitution establishes the execution of the public interest and the implementation of fundamental rights as purposes of the exercise of state functions, on the other hand, it provides that administrative action should be preceded by legal authorization. Thus, it is questioned if, in the absence of law, and aiming at the isonomic fulfillment of social rights among the administrated ones, the Administration would be authorized to discipline such rights by means of regulations. The theme is envisaged from the perspective of new constitutionalism, starting from the premises that the Federal Constitution is made up of legal norms, and that the use of law occurs by the method of subsumption as well as by reflection. Thus, we seek to assess the framework in which it was conceived by the 1988 Federal Constitution from a historical and dogmatic analysis of legality, and to what extent the reflection on constitutional principles can contribute to debate. In addition to it, the regulatory competence of the Public Administration is then analyzed in all its aspects, mainly regarding the types of regulations admitted by the doctrine, and to the consideration made in practicing the administrative function, all to conclude on the viability, or not, of disciplining social rights in cases of legislative omission