understanding brazilian administrative law, the related literature, and education: a comparison with the system in the united states

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© verlag österreich icl journal | vol 9 | 3/2015 | articles 371 understanding brazilian administrative law, the related literature, and educa- tion: a comparison with the system in the united states emerson gabardo* abstract: this paper presents research on a typical subject in comparative law: doctrinal thinking about (and teaching methods for) administrative law in brazil and the united states. the paper’s initial research hypotheses are as follows: 1) in contrast to the united states, in brazil, legal scholarship (legal academic writing) has significantly influenced the construction of the theoretical principles that form the basis of the public administration system; 2) the brazilian understanding of administrative legal scholarship is distinct from that of the united states regarding several specific but representative issues; 3) in brazil, administrative law textbooks and monographs focus on general principles and direct state intervention, whereas in the united states, administrative law education focuses on regula- …

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assumptions this research aims to study hypotheses regarding the similarities and differences in the literature and education related to administrative law between brazil and the united states. it fundamentally aims to propose a reading of brazilian law that goes beyond the words that objectively describe it. beyond its comparative nature, in reality, this paper is a preliminary survey of a preparatory nature; as such, the author may be considered a ‘first-time comparatist’ in peter de cruz’s terminology, although the intellectual activity is not directed to the law as the subject of comparison, since comparison itself is essen- * emerson gabardo is professor of administrative law at pontifícia universidade católica do paraná and at universidade federal do paraná, curitiba, paraná, brazil. this essay draws from the author’s re- search at fordham law school as visiting foreign scholar. email: e.gab@uol.com.br © verlag österreich 372 gabardo, understanding brazilian administrative law tially the method …

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- otic distinctions between us and brazilian institutions, expressions, and concepts of ad- ministrative law, given differences in the mentality, rationality, and understanding of the subject, that is, to avoid ‘cognitive lock-in’ by means of cultural immersion – are extract- ed.4 two fields of analysis were established as prerequisites to the investigation. the first (and the major focus) concerns the forms of foundational educational knowledge of ad- ministrative law in the united states compared with brazil. the second (and the second- ary focus) is a comparison of the linguistic signs relative to the administrative law disci- pline between the two countries. thus, this research is not a theoretical work concerning the science or jurisprudence of administrative law but instead examines the forms of ‘understanding’ thereof in both legal traditions under analysis. in practice, the perspec- tives converge and interrelate, although without deviating from a predetermined, sys- tematized core. characteristics to …

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e who will under- stand the meaning of an expression within its hermeneutical predicates. for this reason, 1 peter de cruz, a modern approach to comparative law (kluwer 1993) 1. 2 the form of empiricism is nevertheless limited because the paper does not analyze the reality of po- litical administrations, which is a typical subject for political science but which can and must increas- ingly be inserted into legal comparisons. take francesca bignami’s text, which advocates a new para- digm for comparative administrative law, as an example. francesca bignami, ‘from expert administra- tion to accountability network: a new paradigm for comparative law’ (2011) 59 am j comp l 18. 3 pascal ide, a arte de pensar (paulo neves tr, martins fontes 2000) 126. 4 edward j eberle, ‘the method and role of comparative law’ (2008) roger williams university legal studies research paper no 67 accessed 10 august 2015. 5 john …

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w. such research is apparently of interest because few comparative studies have been conducted in the area of administra- tive law generally. as susan rose-ackermann and peter l lindseth note, ‘comparative administrative law is emerging as a distinct field of inquiry after a period of neglect.’8 this statement seems to apply to an even greater extent for comparisons of brazil and the united states. space and demand for an extension of studies and research in this area seems to exist, both in brazil and in the united states, considering the recent changes in brazil’s role in the geopolitical and principally geo-economic world that will generate ever-increasing challenges.9 on the basis of kenneth f warren’s suggestion,10 the specific empirical research sources consisted primarily of textbooks, treatises, handbooks, casebooks, and other basic or preliminary books on administrative law (which generically will be called ‘text- books’ in this article). this choice of sources …

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© verlag österreich icl journal | vol 9 | 3/2015 | articles 371 understanding brazilian administrative law, the related literature, and educa- tion: a comparison with the system in the united states emerson gabardo* abstract: this paper presents research on a typical subject in comparative law: doctrinal thinking about (and teaching methods for) administrative law in brazil and the united states. the paper’s initial research hypotheses are as follows: 1) in contrast to the united states, in brazil, legal scholarship (legal academic writing) has significantly influenced the construction of the theoretical principles that form the basis of the public administration system; 2) the brazilian understanding of administrative legal scholarship is distinct from that of the united states regarding ...

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