The principle of administrative legality from the hermeneutic-guarantee perspective: A counterpoint to the position of the STF

Abstract

The conference addresses the principle of administrative legality from a hermeneutic-guarantist perspective. Recognizing the need for greater semantic density for the principle, it uses the reading of art. 2, p.u., item I of Law 9.784/99 and art. 20 of the LINDB for this purpose. At first, it makes a pragmatic consequentialist reading of the provisions, as do the skeptics, who seek solutions independent of those offered by the science of law. It coincides with the position adopted by the STF, as can be seen in the interpretation of item X of art. 37 of the Constitution, which deals with the annual review of the remuneration of public servants (RE 843112/2020). Disregarding the clarity of the constitutional text, the Court understood that there is no subjective right to any readjustment based on an economic analysis of the law that points to limitations of the economic situation to comply with the law. This is a weakening reading of administrative legality. The hermeneutic-guarantist reading of the provisions points in the opposite direction, as it is based on a scientific premise of law and democratic respect for the decisions of popular sovereignty embodied in the constitutional text. Therefore, it understands that subjective rights must be guaranteed. The principle of legality from this perspective gains robustness and more democratic legitimacy.