Consequencialismo e controle do ato administrativo: considerações a partir da Lei de Introdução às Normas do Direito Brasileiro

Abstract

The present dissertation deals with the discipline of consequentialism, as a norm established by art. 20 of the Law of Introduction to the Rules of Brazilian Law, in the process of production and control of the administrative act. To do so, the logical-semantic constructivism was adopted as a theoretical framework for approaching the theme. At first, what is meant by administrative act was defined, with a predisposition to its logical-syntactic aspect, decomposing its assumptions and elements, in order to facilitate the study of the influence of the duty to consider the consequences of the decision in the production and in the control of the act, helping the diagnosis of its main structuring vices. Afterwards, with a predisposition towards the semanticpragmatic aspect, the control activity itself was delimited, facing the problem that perhaps to a greater extent justifies the approach to the theme, which is the possible need for a properly consequentialist theory of justification alongside the theory constructivist of the decision, especially after the approval of the device in question. Finally, it started to scrutinize the text of positive law, using the previous approaches, proposing its own systematization for the various issues that involve the discipline of the duty to consider the consequences of the decision in the production and control of the administrative act, including with regard to the fundamental guarantee of consequentialist justification of the controlling jurisdictional decision. Considering the adopted reference system, it was concluded that consequences external to the law cannot be admitted, not even evaluation criteria that are not built from the positive law system itself. Instead of indicating openness, the new provision, the norm of structure par excellence, constitutes a justifying mechanism of systemic closure, aiming to guarantee, primarily, rationality, either to the decision that produces the administrative act, or to the one that controls it.