Medina Osório, exclusive for The Legal 500: The Constitutionalization of Administrative Law in Brazil: A Substantive and Material Perspective

The Constitutionalization of Administrative Law in Brazil: A Substantive and Material Perspective

Author: Fábio Medina Osório

Introduction

The Brazilian Constitution of 1988 represents a landmark in the history of administrative law, by integrating it definitively into the constitutional order and redefining its role in the governance of public administration and in the protection of constitutional values. This transformation did not occur in isolation, but was preceded by intense academic reflection and by a robust defense of an expanded conception of administrative law. Among the most significant voices in that debate is Miguel Seabra Fagundes, whose work highlighted the urgency of integrating administrative law into the constitutional order as a discipline of a substantive and material character.

The reflections of Seabra Fagundes, published during the preparatory period for the drafting of the Constitution, showed the interrelation between constitutional law and administrative law. While constitutional law establishes the fundamental principles and the structure of the State, administrative law operationalizes these principles in the everyday interactions between the State and citizens. He argued that, when limited to a merely procedural mechanism, administrative law did not realize its potential as an instrument for promoting accountability , safeguarding public assets and protecting individual rights against the excesses of state power.

This perspective was aligned with the aspirations of the 1988 Constitution, which sought to dismantle the remnants of authoritarianism and establish a legal framework based on democratic principles, social justice and the Rule of Law. By incorporating administrative law directly into the constitutional text, the framers elevated its status from a mere technical instrument to a central pillar of constitutional governance.

The work of Seabra Fagundes was fundamental to this paradigm shift. His emphasis on the importance of the constitutionalization of administrative law is present throughout the 1988 Constitution, which enshrined principles such as legality, impersonality, morality, publicity and efficiency as binding norms for all public administration. These principles are not mere formal requirements; they represent substantive commitments to transparency, fairness and the effective use of public resources.

In addition, Seabra Fagundes advocated an expanded understanding of administrative law as a mechanism for safeguarding public integrity. He emphasized the need for clear mechanisms of accountability, including shared liability between public servants and the State in cases of irregular conduct. His proposals for the creation of deliberative bodies and his defense of meritocratic selection processes for the public service were visionary contributions to the debates that shaped the constitutional framework.

The constitutionalization of administrative law under the 1988 Constitution reflects both the theoretical insights of scholars such as Seabra Fagundes and the practical need to reform Brazilian public administration. The Constitution did not limit itself to codifying procedural rules; it also gave administrative law a material dimension, allowing it to act as a vehicle for protecting constitutional values, promoting social justice and ensuring the proper functioning of public administration.

This article examines the constitutionalization of administrative law from a contemporary perspective, recognizing its formal and material dimensions and its evolution as a substantive branch of constitutional governance. The discussion begins with an analysis of the foundations laid by thinkers such as Seabra Fagundes, whose ideas helped shape the role of administrative law in the constitutional order. It then explores the dualistic dimensions of administrative law—formal and material—highlighting their relevance in regulating public administration and protecting constitutional values. Finally, the article analyzes the principles that govern public administration, showing how they contribute to a modern and effective legal framework that transcends traditional limits and responds to the challenges of contemporary governance.

The Foundations of Administrative Law in the Constitutional Order

The elevation of administrative law by the 1988 Constitution is a testament to its crucial role in modern governance. By incorporating principles such as accountability, legality and efficiency into the constitutional text, the framers ensured that administrative law would act both as a regulatory structure for public administration and as a mechanism for protecting public interests. These principles, enshrined in article 37 of the Constitution, serve as the foundation of a legal system that balances state authority with the protection of individual rights and the promotion of collective well-being.

The Constitution also introduced innovative mechanisms to ensure accountability in public administration, including provisions for combating administrative improbity (article 37, §4). These mechanisms demonstrate the substantive dimension of administrative law, allowing it to function as a guardian of constitutional values and as a deterrent against unlawful practices.

Through this normative framework, administrative law has become an essential tool for achieving the broader objectives of the Constitution: transparency, social justice and the Rule of Law. It operates not only as a regulatory instrument, but also as a protector of the public interest, ensuring that public administration is aligned with the principles and values enshrined in the constitutional order.