SOME REFLEXIONS ABOUT THE JUDICIAL REVIEW OF THE CONTEMPORARY PUBLIC ADMINISTRATION

Abstract

Judicial control of the public administration is a subject on which the doctrine presents two specific cuts. The first one is of conceptual matrix. The second is of institutional matrix. In the first cut, doctrine often divides some phenomena into tied administrative acts and discretionary administrative acts. The related acts correspond to a mere operation of law enforcement in the face of the concrete situation. On the other hand, the discretionary acts would present greater margin of decision-making freedom for the public manager who took the decision. In this sense, there could only be substitution / annulment of the discretionary act by the judiciary in cases of reasonable violation of socially relevant assets and rights, while in the related acts control is total. It occurs that the inconsistency of the meaninglessness of an act to justify a responsible control over the administration opens space for institutional reflections. The objective of this paper is to review these two cuts, suggesting a second order approach to the problem of the legitimacy of judicial control of administrative actions. The theoretical reference for the study is the work Mechanisms of Democracy of Adrian Vermeule. From this framework of approach, one can see that the proper functioning of a democracy must combine values, and small scale institutional design, without which the constitutional project loses density.