Introduction

The 1988 Brazilian Constitution represents a turning point in the history of administrative law, embedding it firmly within the constitutional framework and redefining its role in the governance of public administration and the protection of constitutional values. This transformation did not occur in isolation but was preceded by intense scholarly reflection and advocacy for a broader conceptualization of administrative law. Among the most significant voices in this dialogue was Miguel Seabra Fagundes, whose work underscored the urgency of integrating administrative law into the constitutional order as a substantive and material discipline.

Seabra Fagundes’s reflections, published during the preparatory period leading up to the drafting of the Constitution, highlighted the interplay between constitutional law and administrative law. While constitutional law establishes the foundational principles and structure of the state, administrative law operationalizes these principles in the daily interactions between the state and its citizens. He argued that administrative law, when viewed solely as a procedural mechanism, failed to fulfill its potential as a tool for promoting accountability, safeguarding public assets, and protecting individual rights against the excesses of state power.

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

The work of Seabra Fagundes served as a critical foundation for this paradigm shift. His emphasis on the importance of constitutionalizing administrative law resonates 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 more than formal requirements; they represent substantive commitments to transparency, fairness, and the effective use of public resources.

In addition, Seabra Fagundes advocated for a broader understanding of administrative law as a mechanism for safeguarding public integrity. He emphasized the need for clear accountability mechanisms, including shared responsibility between public servants and the state in cases of misconduct. His proposals for the creation of deliberative bodies and his defense of meritocratic public service hiring processes were prescient 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 like Seabra Fagundes and the practical need to reform Brazil’s public administration. The Constitution did not merely codify procedural rules; it also imbued administrative law with a material dimension, allowing it to serve 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 into a substantive branch of constitutional governance. The discussion begins by analyzing the foundations laid by thinkers like Seabra Fagundes, whose ideas helped shape the role of administrative law in the constitutional order. It then explores the dual dimensions of administrative law—formal and material—highlighting their significance in regulating public administration and protecting constitutional values. Finally, the article delves into the principles governing public administration, demonstrating how they contribute to a modern and effective legal framework that transcends traditional boundaries and responds to the challenges of contemporary governance.

The Foundations of Administrative Law in the Constitutional Order

Administrative law’s elevation in the 1988 Constitution is a testament to its critical role in modern governance. By embedding principles such as accountability, legality, and efficiency into the constitutional text, the framers ensured that administrative law would serve as both a framework for regulating public administration and a mechanism for safeguarding public interests. These principles, enshrined in Article 37 of the Constitution, serve as a foundation for a legal system that balances state authority with the protection of individual rights and the promotion of collective welfare.

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

Through this framework, administrative law has become an essential tool for achieving the Constitution’s broader goals of 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 aligns with the principles and values enshrined in the constitutional order.

Author: Fábio Medina Osório