El principio de legalidad administrativa en Brasil: la recuperación de un concepto fundamental para la democracia

Resumen

Despite legality being the cornerstone of the whole construction of contemporary Administrative Law, its definition is one of the most controversial concepts in the science of Law, giving rise to an endless number of theories and opinions regarding the nature and limits of the Administration's submission to the law. The debate swings, like a pendulum, between two extremes: either it is admitted that the Administration can only do what the law expressly permits (positive linkage to the law), or that the Administration can do everything that is not prohibited by law (negative linkage to the law). In Brazil, Article 5, II, of the Constitution states that "ninguém será obrigado a fazer ou deixar de fazer alguma coisa senão em virtude de lei" ("no one shall be obliged to do or refrain from doing anything except by virtue of law"). The Constitution has adopted a wording almost identical to that of Article 5 of the Declaration of the Rights of Man and of the Citizen of 1789: "The Law has the right to prohibit only acts prejudicial to Society. Nothing that is not prohibited by the Law can be prevented, and no one can be compelled to do anything that the Law does not order". For this reason, historically, Brazilian doctrine and jurisprudence have formulated the same concept of administrative legality of the French revolutionaries, admitting the intervention of the Public Administration in the legal sphere of individuals only in the hypotheses and in the manner provided by law, which would be equivalent to the formal denial of any autonomous will to the administrative bodies, which would only be authorized to do what the law prescribes. Rather than a superior source (principle of supremacy), the law would be the only legitimate source of rights and obligations. However, a brief look at administrative practice in Brazil shows how incorrect this statement is, since the Public Administration acts on a daily basis creating, altering or extinguishing legal relationships in situations not provided for by law. Faced with the perplexity caused by closely observing reality, where daily examples arise of administrative acts that are not directly based on any specific legal provision, and thanks to the strong influence of German State theory, many of the formulations that have been developed in German public law in the late 19th century, especially the doctrine of Otto Mayer, have been imported to Brazilian law. Based on the experience of German law in the 19th century, some have defended in Brazil that the Administration can do everything that is not prohibited by law, which would be equivalent to saying that in spaces exempt from legal regulation the Administration would enjoy unlimited power. This conception is based on the concepts of the State theory of the Restoration period, which was consolidated as a model of the European monarchies of the 19th century, especially of the German states, which recognized the king as the original power of the State (monarchical principle), requiring, however, that intervention in the freedom and property of the subjects be admitted only by means of a law dictated with the collaboration of the representatives of the estates. However, these formulations of the German doctrine of the 19th century refer to a model of State that does not fit in the current Brazilian legal system, which is constituted, accordingto art. 1 of the Constitution, as a Democratic State of Law, which is characterized precisely by its peculiar way of acting, completely subject to the Law, with no space for the exercise of power outside the rules of the legal order. The present research, therefore, starting from the observation of the anachronism of the use of the assumptions of these two models of legality of France of the French Revolution and of the German kingdoms of the 19th century, attempts to establish what would be the true nature and degree of the linkage to the law to which the Brazilian Public Administration is subjected under the normative framework of the 1988 Constitution. As a research method, we sought to establish the historical origins and characteristics of the legality models of the French Revolution and the German kingdoms of the 19th century and the idiosyncrasies of the respective societies. Having established the characteristics of these two models, we sought to determine the main changes that occurred after the end of World War II in the socio-political organization of Western States and their consequences in the reformulation of the dogmatics of the State and the law, defining, in general terms, what the linking of the Administration to the law means in the legal systems of contemporary democracies. The determination of the changes and the understanding of the respective reformulation in the theory of the State and the sources of Law has been carried out using as a theoretical framework the thought of Francisco Balaguer Callejón, whose formulations are essential for a perfect understanding of the phenomenon. Starting from the assumptions under which the contemporary Democratic States of Law are structured, it was finally sought to determine the exact nature and degree of the linkage to the law to which the Brazilian Public Administration is subject under the normative framework of the 1988 Constitution, highlighting what is still validly applicable from the models of Revolutionary France and the German monarchies of the 19th century, and how the institutes and formulations of these models should now be interpreted and what has become an anachronism that can no longer be used in the definition of the concept of administrative legality.