Confiança e reputação institucional no direito administrativo: relações de reciprocidade e propostas de juridicização

Abstract

Trust is defined as a positive expectation regarding the future behavior of individuals or institutions. Trust results from a psychological process; therefore, it does not necessarily reflect reality, it may vary between among audiences, and it may involve rational and emotional elements. Trust is voluntary and involves positivity, risks and uncertainties. Reputation and institutional trust share several characteristics and, therefore, are expressions here used interchangeably. Trust in public institutions is a necessary condition for economic, political and social progress. However, trust can expand power and weaken control over government institutions and therefore poses serious risks to the political system. Administrative law must promote a skeptical trust in public institutions, which is based on credible information reasonably available to the public about their capacities and integrity. Trust in public institutions is built from a combination of institutional, psychological, and socioeconomic elements. Administrative law can promote the six institutional elements of trust building. RIA and CBA can improve performance and provide greater expertise, transparency, participation, legal certainty, and integrity. Rules that grant institutional autonomy and that promote expertise, and procedural justice can also be effective in building trust. Depending on the circumstances and their design, however, such instruments may not have the expected effects. Furthermore, certain behaviors, although effective in building trust, are not permitted under Brazilian law, such as the manipulation of information and censorship. Administrative institutions’ reputation tends to impact their discretion, autonomy, deference, and regulatory and contractual efficiency. As a rule, parliament members are more willing to delegate powers to trustworthy institutions. Furthermore, reputation mitigates political and legal control mechanisms that reduce (or prevent the expansion of) discretion and autonomy over time. Government reputation is also a key factor in expanding deference of accountability institutions, in promoting the acceptability of regulation, in the reduction of prices offered by bidders, and in cooperation in long-term agreements. “Skeptical trust” can be used as a useful standard of deference in Brazil. According to it, the intensity of control over a given institution should vary according to the quality, fairness, and integrity of its actions and its decision-making process. Skeptical trust as a deference standard is justified by its ability to contextualize accountability mechanisms (at nonprohibitive costs) to the characteristics of the institution under control, by its search for sincerity, and by the encouragement of government self-improvement. However, skeptical trust as a deference standard brings risks, such as the idealization of accountability institutions’ qualities, cherry picking of reports and performance gaming.