ILÍCITOS E SANÇÕES: OS ARRANJOS AUTORITÁRIOS LEGITIMADOS NA TEORIA DO DIREITO ADMINISTRATIVO

Abstract

The present work sought to explore the concept of “authoritarianism” in Sanctioning Administrative Law, showing that this phenomenon does not appear as an opposition to the law. On the contrary, it seeks to justify itself in the law itself. Therefore, we sought to shed light on the elements that compete to, together, form this matrix of permissiveness (conditions) through which a script travels, with ease, that is not the best translation of the guidelines of a Democratic State of Law. Thus, the discourse that seeks to justify the supremacy of the public interest over private interests, the technique of prescribing administrative laws of enunciation of imprecise precepts, the discourse that seeks to justify discretion as freedom to decide in the free spaces of regulation, the independence of administrative instance and strict legality, together form a large interconnected collection of premises that give the Public Administration broad powers, and also free it from being externally inspected by the Judiciary. It was also sought to demonstrate that a good part of the problem has its origin in the transposition of these values from Administrative Law to the sanctioning field. If Administrative Law was – all of it – conceived to reinforce the idea of authority of the public entity, the Public Sanction Law, whose maximum expression is the Criminal Law, was all based on the idea of prestige to the freedom of individuals. This tension between authority and freedom is the mainspring of all the clashes in Sanctioning Administrative Law. In addition to this, the work sought to demonstrate that a scant reflection on the distinction between illicit and criminal and administrative sanctions ends up corroborating this state of affairs. It is, therefore, the systemic and synergistic action of these doctrinal contributions, all with reference to the law, that allow the consolidation of a less ritualized sanctioning model that more often discredits fundamental individual rights and guarantees. The method is inductive, because the work starts from the analysis of a series of premises consolidated in the Sanctioning Administrative Law to, then, try to demonstrate that they form, together, an authoritarian matrix. They are, therefore, arguments that lead to plausible results, not necessary conclusions. It is also applied, through literature review, to analyze the doctrine. The research is classified as exploratory, qualitative and theoretical, of the bibliographic and, eventually, documentary type, to analyze some judicial decisions.