O direito administrativo como caixa de ferramentas: a formulação e a avaliação da ação pública entre instrumentalismo, instituições e incentivos

Abstract

This study seeks to contribute to the approximation of Administrative Law with its practice and achieved results, as an instrument for the realization of predefined purposes. In this way are investigated not just the interfaces between Administrative Law, economics and political science, but mainly with management science. Assuming the premise of Law as a social technology, and that is necessary to consider its concrete practice and results, this study proposes the use of an instrumental approach based on philosophical pragmatism and legal instrumentalism as developed by the north american legal realism, in order to improve its means of action. Therefore, because of some distinctive notes, the Administrative Law is metaphorically taken as a toolbox that brings together instruments with different capacities. Based on the new institutional economics, institutional legal design is focused as a way of guiding the selection, combination and management of Administrative Law tools according to the incentives they may generate to fulfill tasks as required. Administrative Law toolbox strategies are explored after faced with tools selection approach given by politics and public management, so establishing a diagnostic strategy to evaluate the consistency of legal arrangements in progress and a prognostic strategy to design tools combinations to produce adequate incentives. These strategies are leveraged through an association with methods of institutional experimentalism, incrementalism and minimalism. Lastly, potential critics to the approach of Administrative Law as a toolbox are synthesized and answers that keep stating in favor of the metaphor utility are presented.