A CONSTITUCIONALIZAÇÃO DO DIREITO ADMINISTRATIVO SANCIONADOR

Abstract

This article outlines, bulletin, a brief history of the formation of the liberal constitutional state after the revolutions of the eighteenth century, and discusses the fragmentation of power, hitherto absolute, one and indivisible, in the tripartition inspired by Montesquieu, and the consequent development of a legal regime that could regulate the body of the state bureaucracy, notably the Executive power: Administrative Law. It deals with the violation promoted by this branch of Law, since its genesis, to the principle of equality of all before the law, because it claimed for itself prerogatives and privileges not extended to individuals, relying heavily on an overly open and indeterminate concept: the supremacy of public interest over the private. It also claimed for itself a prerogative of intangibility of administrative merit by the jurisdiction, under the auspices of the separation of powers. And, based on a classic - and anachronistic - reading of the principle of legality, as a positive link to the law, the Administration has long felt authorized to comply with the flagrantly unconstitutional law, or to apply it without weighing up the legal norms that derive of the constitutional text, denying the neoconstitutionalist premise of the normative force of the Constitution. It also discusses the split of the State's jus puniendi, which split between Criminal Law and Sanctioning Administrative Law. The method used is inductive-analytical, to analyze the doctrine, and also applied, through literature review, to analyze the doctrine. The research is classified as exploratory, qualitative and theoretical, of the bibliographic type.