Discricionariedade, orçamento, direitos fundamentais e estado constitucional

Abstract

This thesis addresses the recent doctrinaire and jurisprudential tendency that indicates an effective reduction in the use of discretionality in administrative acts as a result of the increased value lent to principles, through the perspective of the ductile constitutional Law, by GUSTAVO ZAGREBELSKY. The concept of ductility is the cornerstone in the quest for perfecting constitutionalism and for seeking to put into effect, before the State, individual rights. The constitutional State, therefore, becomes the product of constitutional policies for which the Constitution is merely a starting point for a peaceful, democratic, and dialectic solution. ZAGREBELSKY S work is the theoretical platform for the questions raised throughout this entire study, considering that the application of principles has become essential in the pursuit of the ideal of justice, bringing new focus on the role of administrative Law in this environment of deep and rapid changes. The debate that surrounds the effectiveness of fundamental rights is still part of the agenda of great challenges faced by the constitutional State. The increasing demands presented before the Judiciary of claims regarding the effectiveness of fundamental rights has required increasingly more dedicated State actions. The budget is government s expression of political will and, as a result, must be also examined from the standpoint of a constitutional State. The controversy ensues over the limits and possibilities of recognizing fundamental rights by the Judiciary, when such rights collide with the existence of limits inherent to public budgets. There will always be economic, financial, and budgetary limits that will ultimately conflict with the absolute effectiveness of fundamental rights, in the notion of the reserve of the possible. The task of applying fundamental rights in a none-individual, but universal manner, through public policies befalls the Administration. In order to do so, it must seek the concept of a good administration, translated into the efficiency of the Administration s conduct in the permanent encouragement of public participation, through the transparency of information provided to the society by the State