O fim da discricionariedade? Uma revisão crítica do giro democrático-constitucional do direito administrativo.

Abstract

The objective of this article is to promote a critical discussion on some of the sensible theoretical aspects of what may be called “democratic-constitutional turn”, as proposed by Gustavo Binenbojm. More specifically, the aim is to discuss the claim of limitation of administrative discretion using legal principles. How much, in fact, those principles can limit the margins of discretion given to the administration? To answer this question, objections as to the irrationality and as to the hyper-rationality are considered. In the end, the conclusion is that the legal principles are in fact capable of limiting the range of discretion from the administration, though it is necessary some parsimony in their utilization, so that they don’t produce the same results their introduction in legal discourse wants to avoid.