CONSTITUTIONALIZATION OF ADMINISTRATIVE LAW AND REVIEWABILITY OF THE ADMINISTRATIVE DISCRETION

• Main Authors: Luiz Henrique Urquhart Cademartori, Vitória Cristina Oliveira
• Format: Article
• Language: English
• Published: Universidade Federal do Rio de Janeiro 2016-07-01
• Series: Revista de Estudos Institucionais
• Subjects: Neoconstitucionalismo; Constitucionalização do Direito Administrativo; Discricionariedade Administrativa
• Online Access: https://www.estudosinstitucionais.com/REI/article/view/38

The aim of this article is to conduct an analysis of the constitutionalization of Administrative Law, which results from changes in the rule of law and, under a theoretical standpoint, from the paradigm shift of legal exegesis followed by the advent of neo-constitutionalism, which poses the Constitution as the parameter for the interpretation of the other legal branches. Within this context, considering that the concept of administrative discretion goes through interpretation changes and that administrative activity is performed within the boundaries of discretion, this power/duty must always be used with substantial regulatory criteria in order to get the maximum effectiveness of the constitutional rules, thus being subjected to review. In this sense, it is demonstrated that a public official cannot in any way deviate from the realization of the fundamental rights guaranteed by the Constitution, hence stating the reviewability of the administrative discretion.