Controle jurisdicional da discricionariedade administrativa: os desafios inerentes à identificação das zonas de certeza positiva e negativa

Abstract

The connection between the Public Administration and the law is not one of non-contradiction, but of perfect subsumption: this is the principle of strict legality (article 37, caput, Federal Constitution of 1988), an indispensable pillar in the exercise of the administrative function. At the same time, it shall not be forgotten that the Administration is also granted discretionary powers, characterized by a margin of decision-making “freedom” that the law leaves to the administrator, to be exercised on the basis of their own criteria of convenience and opportunity. Administrative acts carried out under discretionary powers are, like any other, subject to review by the Judiciary, but only in terms of legality. Based on these premises, this study sought to identify, in the light of brazilian doctrine, the situations in which this control of legality has led to a review of the content of administrative decisions, and why, since situations of this nature have the potential to give rise to arbitrariness on the part of the Judiciary, while acting precisely under the pretext of curbing arbitrariness on the part of the Administration. In order to limit the scope of the research, the work was based on the Theory of the Zones of Certainty of administrative function, according to which Discretion will only be glimpsed in concrete when there is no doubt (i) about the extent of a concept contained in the legal rule executed by the administrator or (ii) about the scope of the legal will. It was possible to verify that the jurisdictional control exercised over Administrative Discretion has been historically amplified, to the point that it is currently possible for the Judiciary to use constitutionalized principles as sole hermeneutical guidelines to review acts exercised under the cloak of discretion. At the same time, both brazilian doctrine and jurisprudence, specifically that of the Federal Supreme Court, have shown a tendency towards the need for the Judiciary to take a self-restraining stance, since the unreasonable substitution of the administrator's opinion for its own, especially in cases of a political or technical nature, can generate unjustified disharmony in the relationship between Powers