Malice in administrative improbity: a rational quest for the subjective element in the violation of the principles of Public Administration

Abstract

This article examines the application of the Law of Administrative Improbity by the Brazilian Superior Court of Justice (STJ), focusing on the debate about the need of demonstration of intent to hold the public agent accountable for violating the principles of Public Administration. Based on qualitative analysis of the arguments used in deciding the REsp n. 765.212/AC (special appeal in which the issue was more deeply discussed), it appears that the Court lacks clarity to deal with the concepts of ‘intention’ and ‘will’. And although the conclusions of the judges converge, the arguments they mobilize conceal deep theoretical differences, which cannot be ignored for a rational and intelligible application of the Law. Aiming at enriching this debate, the article proposes a recovery of the Aristotelian notion of practical reason, which allows for a more efficient distinction between illegal conduct and administrative improbity. It is also pointed out that understanding the intelligibility of human action depends on context analysis. Moreover, the fact that the public agent acts to carry out policies, and not only to avoid illegality, must be taken into consideration by courts. When deciding actions of administrative improbity judges must, therefore, address these matters.