Administrative Discretion: The Public Manager’s Freedom of Choice and Judicial Review of Its Limits

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

A discretionary act gives a public official room to choose among solutions that are equally valid under the law, but that freedom is never absolute. It is bounded by the public purpose, by the reasons that justify the act, and by the principles of proportionality and reasonableness, which open the door to judicial review whenever a decision strays from the collective interest.

What a discretionary act is

In Brazilian Administrative Law, acts of the government are usually divided into two categories: bound acts (atos vinculados) and discretionary acts (atos discricionários). A bound act arises when the law describes every element of the conduct precisely, leaving no room for evaluation. Once the requirements are met, the public official has a duty to perform the act exactly as the rule dictates, with no room to weigh whether it is convenient.

A discretionary act, by contrast, arises when the law deliberately gives the official room to exercise judgment. Instead of imposing a single answer, the rule allows the authority to choose, within predefined limits, the solution that best serves the public interest in the specific case. That choice falls on two central elements: the reason, which justifies the act, and the object, which defines its content.

Discretion exists because the legislature recognizes that it cannot anticipate every situation that arises in public administration. Concepts such as public interest, urgency, convenience, and timing require weighing the real circumstances. The law therefore entrusts the public manager with filling those gaps through a reasoned decision suited to the moment and to the community where the manager acts.

Discretion is not arbitrariness

People often confuse discretion with arbitrariness, and the distinction is crucial. Discretion is the freedom the law grants, exercised within the limits the law sets. Arbitrariness, on the other hand, is conduct that breaks through those limits, ignores the public purpose, or rests on reasons that are nonexistent, false, or disconnected from what the rule authorizes.

Every discretionary act remains subject to the principle of legality. The authority to perform it comes from the law, the required form comes from the law, and the goal pursued must always be the public interest, never the personal interest of the official or of third parties. When an authority bends a decision to achieve an aim the rule does not contemplate, the result is what Brazilian law calls misuse of purpose (desvio de finalidade), a defect that taints the act.

The room for choice, then, is a qualified and accountable freedom. The public manager must state the reasons, show the connection between the facts and the measure adopted, and explain why that solution serves the community best. The statement of reasons is no longer a mere formality. It works as a tool of transparency and oversight, both internal and external.

This is where the theory of determining reasons (teoria dos motivos determinantes) becomes relevant. When the government declares the factual and legal grounds that support an act, it is bound by them. If the reasons given turn out to be false or nonexistent, the act becomes invalid, even if the authority could, in theory, have acted on other legitimate grounds that it never declared.

Reviewing these defects does not interfere with the manager’s legitimate choice. It simply ensures that administrative freedom stays within the frame drawn by the law and by the constitutional principles that govern the conduct of the State.

In Brazilian Administrative Law, acts of the government are usually divided into bound acts and discretionary acts.

Administrative merit and legality

Administrative merit (mérito administrativo) is the heart of discretion. It is the judgment of convenience and timing that the law reserves to the public manager to decide whether, when, and how to act among the legitimate options available. Deciding whether a public square should be built in one neighborhood or another, or whether a given public policy will be implemented now or in the next fiscal year, are typical examples of this space for judgment.

The traditional rule holds that the Judiciary may not take the administrator’s place in analyzing merit. The judge’s role is to check whether the act is lawful, not to decide, in the authority’s stead, what the best political or technical choice would have been. Otherwise, the Judiciary would end up taking on functions that belong to the Executive, in violation of the principle of separation of powers.

That boundary, however, is not as rigid as it first appears. Legality today is not limited to the literal text of a statute. It incorporates the constitutional principles set out in Article 37 of the Constitution: legality, impersonality, morality, publicity, and efficiency. A legality review now also covers compliance with those principles, which widens the ground open to judicial review.

Judicial review through proportionality and reasonableness

The evolution of Administrative Law has established proportionality and reasonableness as central tools for reviewing discretionary acts. Reasonableness requires an administrative decision to be consistent with common sense, with the values of the legal system, and with the reality of the facts. A disproportionate measure, even one formally authorized, may be invalidated for violating these principles.

Proportionality, in turn, is usually broken down into three successive tests. The first is suitability, which asks whether the means chosen are capable of achieving the intended end. The second is necessity, which asks whether a less burdensome measure could have produced the same result. The third is proportionality in the strict sense, which weighs the benefits obtained against the burdens placed on the individual.

Applied to disciplinary power, this reasoning prevents a minor infraction from being punished with the harshest sanction available. Applied to police power (the government’s authority to regulate private conduct for the public good), it keeps an excessive restriction from stifling rights when a milder measure would have been enough. In both cases, the review does not intrude on the legitimate choice. It only removes manifest excess and a clear mismatch between the conduct and the government’s response.

Brazil’s higher courts have held that judicial review of discretionary acts is permissible when there is a violation of constitutional principles, misuse of purpose, or clear disproportion. Case law recognizes that discretion is not a blank check, and that reviewing acts against these principles is compatible with the separation of powers, as long as the judge does not replace the manager’s judgment on convenience.

In litigation practice, this means that defending an individual against an abusive administrative act does not depend on showing that the authority broke an express rule. It is enough to show that the decision was unreasonable, disproportionate, or driven by a purpose foreign to the public interest. This is the area where judicial review of discretionary acts is at its most sophisticated and most protective of fundamental rights.

The result of this arrangement is a delicate balance. On one side, the manager’s autonomy to decide matters of convenience and timing is preserved. On the other, individuals are assured that no public choice entirely escapes scrutiny under the broadened concept of legality, morality, and proportionality.

Frequently Asked Questions

What is the practical difference between a bound act and a discretionary act?

With a bound act, the law defines every element of the conduct and the authority has no room to choose: once the requirements are met, it must act exactly as the rule dictates. With a discretionary act, the law reserves a space for the official to exercise judgment about the reason and the object, allowing a choice, among valid solutions, of the one that best serves the public interest in the specific case.

Can the Judiciary annul a discretionary act?

Yes, as long as the review addresses legality and not merit. The judge does not decide what the most convenient choice would have been, but may annul the act when there is a defect of authority, form, purpose, or reason, or when the decision is unreasonable and disproportionate. Reviewing acts against constitutional principles has considerably widened the reach of this oversight.

What does administrative merit mean?

Administrative merit is the judgment of convenience and timing that the law reserves to the public manager to decide among the legitimate options available. It is the core of discretion and, as a rule, the Judiciary cannot substitute its own judgment for it. That space, however, does not authorize arbitrary decisions: the act remains subject to the limits of the public purpose, proper justification, and proportionality between the means used and the ends pursued.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.