Discricionariedade: alcance da atuação administrativa e judicial no Estado Constitucional

Abstract

This thesis does examine how legal issues are decided in Constitutional State. In this connection, we analyzed the most frequent concept used in Law to make decisions discretionary judgment. The discretionary judgment is practiced by means of an innovative perspective as it is analyzed concomitantly in the administrative and judicial spheres. Assertiveness developed in this thesis consists basically of the following points: (i) discretionary judgment is contrary to the law since it sets apart its application; (ii) presently, the administrative act cannot have a privilege treatment as regards other state acts, i.e., the Law. Therefore its illegality and unconstitutionality should be thoroughly appraised; (iii) exclusion of the discretionary judgment in administrative sphere must not influence in its enlargement in the judicial sphere. Finally, this thesis does criticize the current decisions model, since it is a relativist paradigm which admits the possibility of existing contradictory decisions for same concrete case. After a critical analysis to our decision model, we will go on completing the thesis core, i.e. that there is right answer to each concrete case, be it in the administrative or judicial sphere