Precedentes e padrões decisórios nas esferas judicial, controladora e administrativa : contribuições ao regime jurídico das políticas públicas.

Abstract

Precedents and decision-making patterns in the administrative, supervisory and judicial spheres are studied from the perspective of law as integrity, as a decisionmaking chain, demonstrating their contributions to the legal regime of public policies. The general objective is to point out the contributions of a correct Reading of the distinction between precedents and decision-making standards, in those three spheres, to the legal regime of public policies. The problem is: what contributions does the distinction between decision-making standards and precedents make to the legal regime of public policies, based on law as integrity, in the judicial, supervisory (courts of auditors) and administrative spheres? The hypothesis is that the distinction between precedents and decision-making standards, institutes that can be observed in those three spheres, contributes to the legal regime of public policies, with qualitative repercussions on the decisions to be taken by the actors involved, if they are not absorbed uncritically. There are different ways of operationalizing these decision-making paradigms, respecting their characteristics, which requires an interpretative effort, encompassing the dialogues of distinction, challenge, overcoming and following a paradigm. The meaning of the legal regime of public policies is constructed in dialog with these paradigms. The method is hypothetical-deductive. Theoretical research and the presentation of cases are carried out. Law as integrity (Ronald Dworkin) is the theoretical matrix for the contributions to the legal regime of public policies. The first chapter explores the concept of public policy, based on the virtue of integrity. The relationship between fundamental rights and public policies is demonstrated, to indicate how the virtue of integrity operates as a limiter. What is meant by the legal regime of public policies is developed and a conception of public policy is presented. The second chapter presents the conceptions of precedents and decision-making standards, which are appropriate to the constitutional text. The third chapter shows that precedents and decision-making standards can be observed in the decision-making practices of the courts of auditors and the public administration. The fourth chapter proposes the dialogues to be developed by future interpreters and decision-makers with precedents and decision-making standards in the judicial, supervisory and administrative spheres, as well as in the legislative sphere. The dialogues are examinations of distinction, challenge, overcoming and the decision to follow a paradigm. The fifth chapter also provides a final reflection on the formation of decision-making standards, in terms of a minimalist approach. The thesis demonstrates that the correct interpretation of precedents and decision-making standards contributes to the legal regime of public policies, generating hermeneutical gains. Differentiating these paradigms and their dialogues (distinction, challenge, overcoming and follow-up) is crucial for the integrity and predictability of public policies, avoiding the disintegration of the decision-making network between the judicial, supervisory, administrative and legislative spheres. As for decision-making patterns, a minimalist approach is suggested in their formation, respecting the facts and avoiding comprehensive theories, so as not to compromise the flexibility of the system.