Em defesa do poder de polícia: uma proposta de superação das críticas e dos modelos alternativos ao poder de polícia no direito administrativo contemporâneo

Abstract

This thesis aims to examine the merits of the criticisms of police power and the suitability of the alternative models proposed to replace it as a legal mechanism for limiting the rights and freedoms of individuals in a political community.The first part of the study presents a general theory of police power, being highlighted: (i) the origins of expression; (ii) the broad and plenary sense and the narrow sense of the administrative function; (iii) the classifications of the institute, divided into general police/special and police and administrative police/judicial police; and (iv) the distinction between the police and other administrative functions, such as administrative powers, the public utilities and fomentation.The second part is intended to address the dilemmas existences of police power, and highligh the institute's identity crisis and describe the supposed anomalies systematizing the main criticisms of the legal literature on administrative police. Criticism is divided into five species: (i) the historical criticism; (ii) the terminology criticism; (iii) the institutional criticism; (iv) the functional criticism; and (v) the formalist criticism.The third part is reserved to police replacement proposals. We will analyze: (i) the administration order proposal; (ii) the idea of administrative restrictions on property and freedom; and (iii) the incorporation of police powers by the economic and social regulation.The fourth part is dedicated to propose a defense to the police power. Initially, it is explained the conservative theoretical framework adopted in this dissertation, exposing the ten principles of the philosophical movement called conservatism and its application in the response to criticism of the institute and the analysis of substitute models. Next, we present the criticism of the arguments in favor of the elimination of police in legal doctrine. Then, we explain the reasons why alternative models to the police are insufficient.Finally, the last part of the paper addresses three transformations of police power, resulting from changes in contemporary administrative law.