Controle judicial dos conceitos jurídicos indeterminados

Abstract

The central question of this article is to analyze the limits of the Judiciary in the control of the administrative discretion generated by the indeterminate legal concepts. This occurs because these concepts establish a high degree of imprecision, giving the public agent an almost infinite spectrum of performance, opening up space even for the practice of arbitrariness. Hence the need to use instruments that promote the reduction of the uncertainty's degree and juridical insecurity that these concepts bring. Legal hermeneutics plays this role. The relevance of this study in the scope delimitation of possibilities of jurisdictional interference in discretionary administrative acts. For this purpose, critical-dialectical bibliographical methodology was used. The theoretical framework is post-positivism. At the end of the article, it is concluded that discretionary administrative acts can be reviewed not only in terms of legality aspects, since it is necessary to consider judicial control of legitimacy, of conformity of the act with the entire system of rights, even though this implies the examination of questions concerning administrative merit. More specifically, as regards the discretionary administrative acts that the law allows by means of indeterminate legal concepts, legal hermeneutics assumes the role of centrality, since its application makes it possible toestablish clearly the limits of jurisdictional control of discretion, helping to reduce the degree of legal uncertainty of these acts