Reviving the meaning of administrative merit

Abstract

One of the legal concepts whose meaning has given rise to controversy is that of merit.  This is because, in addition to its common meaning, it has several meanings in law, aimed at diferent consequences. For this reason, the aim of this article is to revive the notion of administrative merit or administrative decision, while avoiding  confusion with its procedural meaning. The relevance and importance of the approach stems from the recent use that case law has been making of administrative merit, especially with regard to the possibility of its judicial discussion in relation to procedures that restrict rights, such as the administrative disciplinary procedure. Hence the text, based on the classic and current national and foreign administrative doctrine, seeks to emphasise that merit, considered to be the essence of discretion, is na área of freedom for the administrator to decide and is exempt from judicial control. The origins of the concept of merit, due to Italian influence, and its foundation, which lies in the principle of the division of powers, were discussed. Other aspects were also examined, such as the link between merit, discretion and bindingness, the questiono of whether the merit encompasses the reason for the administrative act and the updating of the concept’s scope in the ligh of the 1988 Constitution’s positivisation positivisation of public administration principles.