Segurança jurídica e o ato administrativo: por um regime de transição de avaliação cogente

Abstract

The choice for the Rule of Law in the Constitution enacted in 1988 brought with it the axiom of legal security as an assumption. This paper assesses how effective that axiom is when the government carries out its administrative functions, especially administrative acts and their effective dimension within the ambit of the Rule of Law. It is assumed, therefore, that legal security is only preserved when legal relations are endowed with reliability, cognoscibility and calculability. This takes account of the vivid feeling reflected in the works of legal scholars, and experienced by society as a whole, that the country is currently going through grave legal insecurity as well as a breach of legitimacy of the governments actions. The constant normative changes and the fickle stance of some governmental bodies are just a few of the factors that may be viewed as drivers for this scenario. Concurrently, the traditional mechanics of extinguishing and modifying governmental acts (concrete or normative acts) takes little account of the peculiarities that effectively surround the scenarios in which changes are imposed. With respect to concrete acts, one identifies only the isolated possibility of their conservation or extinction linked to ex tunc and ex nunc effects, and only more recently has the preservation of the effects been related to the good faith of those involved. With respect to normative acts, in turn, the axiom that states that there exists no vested right to a legal regime underlies the assumption that rules can be revoked at any time, without mandatorily pondering over a possible transition regime. The issue investigated here, in this light, refers to the barriers that are erected in the Brazilian legal framework for the stabilization of the legal-administrative relations. One wonders, in particular, whether the implementation of a transition regime of mandatory assessment could strengthen the principle of legal security and the legitimacy of the governments affairs. Further, this paper examines to what extent those subject to the government should tolerate the alterations stemming from administrative acts carried out by government. At any rate, how is one to reconcile the axiom of legal security with the dynamics of the rules and the distinct interpretations of such rules over time, within the context of democracy? Indeed, one recognizes that the so-called instruments to solidify legal security may contribute to stop the States arbitrariness. In this paper, however, some gaps arising from the existing traditional system are pointed out, which call for the implementation of a complementary system that lead to the adoption on a case-by-case basis of intermediate categories of legal effects. The results of this research, concerning concrete acts, point to a modulation of the effects arising from administrative decisions and entail, for normative acts, and to the obligation to assess a transition regime, if such a transition is needed, on a case-by-case basis.