Silêncio no poder normativo: reflexões sobre os efeitos da presunção de legitimidade nas omissões de normatização pela administração pública

Abstract

The research arose from the need for specific academic and legal debate and even indication of a solution for the elements of bad faith that arise from the omission in the exercise of the normative power of the Public Administration, - both in the role of the Executive Branch, as well as in administrative functions. inherent to the Legislative and Judiciary Powers. This is an academic-scientific invitation to visualize a possible scenario of application of the theory of administrative silence based on the omission in the exercise of normative power and the details of its analysis focus on social, political, philosophical and historical aspects that contributed to the consolidation of three important instruments that permeate the performance of Public Administration, namely, normative power, the attribute of the presumption of legitimacy and the principle of legality or legality, as well as the reckless consequences of their distortion, maximum when interconnected by specific legal relationships . The investigation sheds light on what has come to be called normative administrative silence, based on the triad: negation (of right or request), invocation (of legality, due to the absence of a norm), shielding (in the presumption of legitimacy). In structuring this possible institute, the relationship between normative power and the attribute of the presumption of legitimacy and the principle of legality and its consequent configuration in the fields of good faith and legitimate trust are discussed, suggesting, in due course, that establish conditions in the legal system, a kind of prohibition against contradictory conduct, opportunely raising duties inherent to the signage, this with the purpose of, at the same time: a) recovering from the administrator his office, as an instrument for optimizing rights and b) offer the recipients of the unedited rule the possibility of continuing in the search for the good of life until then under obstacles generated by the Public Administration.