Os regulamentos e as exigências da legalidade: estudo sobre a viabilidade dos regulamentos delegados no ordenamento jurídico brasileiro

Abstract

This research analyzes the possibilities of delegated regulations in the Brazilian legal-constitutional order, and looks for the definition of the limits of the ruling function by the Public Administration. The first concern was to define the legislator's minimum duty on regulating the subject, decisions which the Parliament could never entirely assign to the Administration's discretion. The delegated regulations theory was developed from this understanding, as a type of executive regulation, considering that the delegating law had been already defined by regulation standards. It is, therefore, an attempt of conciliation between delegated regulations and Rule of law. Thus, in the first part of the text, the separation of powers and the legality are covered, in an attempt to line up the limits of ruling function. In the second part, the differences between regulation and law are explained, and also the differences between regulation and administrative act in strict sense. After that, the regulation's concept is presented, as well its justification, classification and typology. Subsequently, it is argued the existence of delegated regulation as an especial type of executive regulation, once it must respect the legal standards. At last, the substantial limits to the ruling function and are indicated, i.e. the duties of the legislator. It was not intended the analysis of the viability of the abstract type of regulation to find out whether the regulation is adjusted to the legal-constitutional order. On the contrary, the study tries to understand the regulation from the perspective of the requirements of the law. From the definition of minimum duties of the delegating law, all subsequent regulation would be considered, in certain way, as an executive modality of the law, not offensive, therefore, to the principles of the Rule of law