The administrative binding decision pattern and administrative precedent as categories and their contributions to shared administration

Abstract

The categories of administrative binding decision pattern and administrative precedent, in Brazil, are investigated from the perspective of shared public administration. The objective is to understand whether such mechanisms cooperate with the shared administration, delimiting their functions. The administrative binding decision pattern is a legal imposition, that is, it is a decision that is formed to regulate future cases. The precedent is formed in the decision-making chain, organically, in which a certain agent, when deciding, takes up a decision from the past, to create the standard that will decide the present situation.  Both categories require going back to the past in order to understand what the Law requires. While the administrative binding decision standard is created formally, to bind future situations, the administrative precedent imposes itself, naturally, by its argumentative quality. The problem to be answered is: considering the paradigms and assumptions of a shared public administration, in what way can the distinction between binding administrative decision-making standards and administrative precedent contribute to the formation of a democratic administrative decision focused on the public interest? The hypothesis is that the administrative decision, which gives meaning to the Law, should be developed in a procedural environment, with the participation of the actors and addressees of the rules. In the administrative binding decision pattern, as it is already known in advance that the constructed answer will regulate future situations, it is inevitable that a greater openness takes place, to cooperate with the legitimacy of the decision and with shared administration.