The application of balancing in the administrative decision regarding the appointments to commissioned public positions

This article aims to analyse the discretionary decisions of public managers related to appointments to commissioned public positions in Brazil. The study highlights the constitutional framework that allows free appointment without, however, ceasing to demand compliance with principles such as legality, morality, and efficiency. Based on Robert Alexy’s theory of balancing, it is stated that administrative discretion must always be exercised under the parameters of adequacy, necessity, and proportionality. Following this perspective, the appointment process must necessarily avoid abuses such as nepotism, ensure transparency, and prioritize public interest. Ultimately, this work emphasizes that discretionary power should not be considered as freedom, as it is rather the practice of a legal duty to achieve optimal public administration aligned with constitutional principles.

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Publication Details

Journal
DELOS Desarrollo Local Sostenible
Published
2025-09-16
DOI
https://doi.org/10.55905/rdelosv18.n71-077
Primary Topic
Polish Law and Legal System
Type
article
Field-Weighted Citation Impact
0.00
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article

The application of balancing in the administrative decision regarding the appointments to commissioned public positions

Antonio Carlos Alves Pinto Serrano, Silvio Gabriel Serrano Nunes, Fábio Llimona
DELOS Desarrollo Local Sostenible
Polish Law and Legal System
article

The application of balancing in the administrative decision regarding the appointments to commissioned public positions

Antonio Carlos Alves Pinto Serrano, Silvio Gabriel Serrano Nunes, Fábio Llimona
article en

Abstract

This article aims to analyse the discretionary decisions of public managers related to appointments to commissioned public positions in Brazil. The study highlights the constitutional framework that allows free appointment without, however, ceasing to demand compliance with principles such as legality, morality, and efficiency. Based on Robert Alexy’s theory of balancing, it is stated that administrative discretion must always be exercised under the parameters of adequacy, necessity, and proportionality. Following this perspective, the appointment process must necessarily avoid abuses such as nepotism, ensure transparency, and prioritize public interest. Ultimately, this work emphasizes that discretionary power should not be considered as freedom, as it is rather the practice of a legal duty to achieve optimal public administration aligned with constitutional principles.

DELOS Desarrollo Local SostenibleVol. 18(71)
Universidade de Santo Amaro (BR)
Openalex Percentile: Top 71%
Polish Law and Legal System
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