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The legal semantic architecture of public administration: between discretionary power and constitutionality

Grant number: 17/13539-6
Support type:Scholarships in Brazil - Doctorate (Direct)
Effective date (Start): October 01, 2018
Effective date (End): September 30, 2022
Field of knowledge:Applied Social Sciences - Law - Theory of Law
Principal researcher:Vitor Rhein Schirato
Grantee:Marco Antônio Moraes Alberto
Home Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

The claim of this research is to analyze the conceptual connection between the comprehension of political power embodied in the State and the theoretical construction of Administrative Law object. Departing from a framework anchored at systems theory, this work seeks to understand the sovereignty concept which would be on the basis of two rival alternatives of architecture (semantics) of Administrative Law: discretionary power and constitutionality. The present project, inserted in the search line "Administrative Law and Society", seeks to analyze, therefore, the social patterns of concept building, by the legal system, of the object of Administrative Law, hence understood as a historical artifact dependent upon theoretical reflection on State's power. My central hypothesis is that "Administrative Law", as a conceptual object, does not exist "by itself", nor departs from something like an "original plan" or a "founding myth", which would have been determined, in a univocal and timeless way, since the historical affirmation of the expression "Administrative Law" in legal and political language. According to this hypothesis, the communicatively built content of this conceptual object depends upon the conceptual achievement of society (semantics) available in the legal system for its own constructions. This kind of conceptual achievement relies, with regard to the Administrative Law object, on an external observation of political system by legal system. Thus, the proposed investigation will be driven on the key-concept of "State", due to two methodological assumptions: (i) public administration is an organization within political system, of which "State" is the global organization; (ii) the "State" is a political theoretical construction that, once observed by legal system, plays a major role structuring the part of legal communication which is centered on the issue of policy regulation. Departing from a framework configured by the systems theory, as proposed by Niklas Luhmann, this research, that does not focus to investigate properly this author's thinking itself, takes "discretionary power" and "constitutionality" as founding elements of alternative (semantic) architectures on Administrative Law, whose anatomy must be found not in a simple outlook of legal ideas, but in long duration movements, which allows the resettlement of these ideas within one of the two semantic architectures mentioned, in other words, within a pattern of legal observation of political power. My claim is, thus, analyze how the conflict between these two semantics is constitutive of the current controversy on Administrative Law object, arguing the question if still makes sense to conceive Administrative Law as a feasible expedient to legal regulation of political power. (AU)

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