A importância da situação concreta para a devida identificação da discricionariedade

Unprepared, in a not insignificant number, Brazilian public agents are unaware of the distinction between law and norm, ignore the techniques of legal interpretation and, when integrating the norm, disregard the concrete situations to be addressed. As a result, they are unable to identify the existence of discretion and its limits. They do not make an objective assessment of the concrete (or real) case that requires a solution whose performance is the responsibility of the State (concrete reason of de administrative procedures) and they extend the limits of a discretion that often doesn’t exist. However, inaptitude is not the only obstruction of the public interest due satisfaction, there are other impediments: imprudence or rashness, hurry, indolence, personal vanity, adherence to individual power, carelessness, avidity, covetousness and corruption. The bad public administrators that damage advisedly the society dispute with those who damage inadvertently the collectivity. Public agents must know how to interpret the norms, but they must interpret also the concrete cases (concrete reasons of de administrative fulfilments), because both interpretations are important to identify the true limits of administrative discretion. In each individual concrete case, the discretion is lesser than it were in the norm in thesis, furthermore the administrative discretion manifests itself in a different way as the legally relevant peculiarities of each situation to be met.