No, we do not intend to answer the title question in this article. Our intention is to demonstrate that the diversity of possible responses reveals how precarious the notion of violating principles such as administrative improbity is. In addition to being vague and open, in addition to questions of hermeneutics, the biggest problem resides in the possible divergences regarding the concrete projections of the principles.
Bill 10.887/2018 introduces changes to the Administrative Impropriety Law (LIA), the result of work carried out by valiant jurists — as well as a substitute presented by Deputy Carlos Zarattini (PT-SP), with whom we already recognize your hit.
One of the issues dealt with concerns the provisions of article 11 of the LIA, which advocates that an act of administrative improbity is the violation of principles, with the items of this article delimiting conducts in a merely exemplary manner.
In our view, the exclusion of this hypothesis as an act of improbity is imposed by the duty of legal certainty, or else that the items of article 11 are exhaustive, no longer accepting the notion that violation of principles would suffice for that.
It is rightly proclaimed that a legal norm is a comprehensive genus of the species rules and principles.
And despite academic gatherings regarding the concept of principles, the doctrine of Celso Antônio Bandeira de Mello is classic, for whom principles are nuclear commandments of a system, serving as criteria for understanding and understanding different norms.
The superlative seriousness of the violation of principles concerns the necessary preservation of the system’s integrity. However, it is Celso Antônio Bandeira de Mello himself who clarifies, when dealing with infractions and sanctions, the inseparability of the principle of typicality from the notion of the Rule of Law as a requirement for legal certainty.
Principles do not typify prohibited, mandatory or permitted behavior. They are endowed with a very high degree of generality, abstraction and denotative openness, not giving rise to security as to what is being specifically prohibited or forced to do. As a matter of fact, the tension between principles is so common that the technique of balancing is frequently used by the Judiciary in the judgment of concrete cases.
This is the reason why, in terms of sanctions, it is necessary to describe the types of behavior liable to apply superlative serious sanctions, such as criminal and administrative improbity.
We are not dealing here with mere legal conjectures, we are facing an essential issue that has been criminalizing public management. And the time has come to understand that drafting a law requires the consideration of good public agents, who cannot be at the mercy of interpretations of concepts as fluid as those arising from the principles.
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