Limitações ao poder regulamentar do Conselho Nacional de Educação na definição das obras componentes do conteúdo programático das escolas

Abstract

This paper looks to analyze the regulatory power of the National Counsel of Education related to the definition of the literature books components of the programmatic content of the schools and to provide criteria to its delimitation. As evidenced by the polemical legal opinion 15/2010, the regulatory competence is exercised on a case-by-case basis by the National Counsel of Education, which puts basic postulates of a Democratic State of Law at risk, such as legality and legal security. In order to reach the objective, this study starts with the analysis of the legislation related to the competences of the National Counsel of Education and with doctrinal lessons about regulatory power, discretion and its limits. The theory of administrative limitation by Schmidt-Assmann provides useful parameters to the limitation of the administrative discretion in the context of the regulatory competence. The conjugation of this theory with the normative content of the regulatory competence of the Counsel allows the establishment of more solid criteria to the limitation of this power, leading thus to the conclusion that the specific resolutions are propositional and that the normative function of the Counsel must be confined to the establishment of general directives to the education institutions of the country.