Rethinking Public Administration. A study from a constitutional theoretical perspective

Abstract

Summary: I. THE SOCIAL STATE AND PUBLIC ADMINISTRATION. 1. Intro- duction. 2. About the functions of the State. 3. A Social Administrative State. 4. Responsibility of the State. II. THE ROLE OF PUBLIC AD- MINISTRATION IN THE SOCIAL STATE. 1. Public Administration and the Constitution. 2. Social administration as a provider. 3. The ad- ministration of benefits tailored to the individual. III. MODULATION OF SOME OF THE PRINCIPLES GOVERNING ADMINISTRATIVE ACTION. 1. Principle of legality. 2. Reservation of rights. 3. Administrative discretion. IV. CONCLUSIONS.

Abstract: We believe that the study of Public Administration has always been carried out from an exclusive perspective of the rule of law and its classical principles, forgetting the social function that it also has. This context  has led to the review of administrative action being read with a “code” that no longer exists, since it is an open secret that administrative action has changed. The State and its executive arm, the Public Administration, have gone from being a kind of “night watchman” (in Garrorena’s words) to being the fullest “ex ante” guarantor of existential provision. In this order of ideas, we are of the opinion that the state continues to be a state of law, but also a social state, which requires a change in the perspective of its study. In Latin America, the demands made on the State are based on a bureaucratic understanding of its actions, which results in the inefficiency and ineffectiveness of the State and in a kind of disappointment on the part of the citizen, which even leads him to opt for informality and to reject public aid. In this sense, we believe that the European example and the reflections carried out in the last two centuries, especially in the Spanish and German doctrine, can be useful to demand a rethinking of the administrative action in Latin America, in accordance with a social state of law. Therefore, this research is based on a doctrinal study of the so-called Social State and the requirements that arise for public administration and then proposes an adjustment of the classical principles that govern administrative action: the principle of legality, the principle of reservation of rights, and administrative discretion. We start from a current context, the social state of law, and a revision of administrative action is required, which, in our opinion, has remained stagnant in classical theories. Likewise, we start from an understanding of the current public administration as provider administration, which, we argue, is the current guarantor of the fundamental rights of citizens in the social state under the rule of law. In this sense, we postulate the idea that by adjusting the actions of the administration to the requirements of the principle of administrative discretion, it will be possible to materially achieve adequate attention and protection of the citizen through a personalized service. This requires rapprochement between the administration and the citizens, always respecting and guaranteeing their fundamental rights.