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Administrative policy law: a comparative institutional analysis of state reform in Chile, Brazil and Argentina

Abstract : On the basis of a comparative work, we argue that “State Reform” is a continuous, self-conflicting and overall public policy that challenges any stable conceptualization of Administrative Law. We do not only argue that the transformations of the State in the last twenty years have affected the previous paradigm of Administrative Law. Beyond that, the new paradigm is deprived of any programmed content: the commitment is to not be committed to any fixed set of tools to elaborate and implement public policy. Hence, there is a potential approximation between public law and public policy phenomena. Indeed, Chile pushed this approximation in a more aggressive way: the “pragmatic Weber” profoundly reformed the State without being revolutionary and articulated its parts without renouncing its unitary character. In Chile, nothing sounds truly public, but nothing seems to be completely out of the State control. Public and private confusion is further acknowledged. In turn, Brazil has absorbed some values from the public policy rational, but they only consolidate one more « chapter » of Administrative Law books. There is a fragmented understanding of Administrative Law in Brazil, which encompasses a bipolar (or even multi-polar) speech of a “confused Weber”, who manages a de-centralized State, deals with the tensions of the double legitimacy of regulatory agencies and bets on several public-private partnership models. Finally, neither is Argentinean Administrative Law confused, nor is it real. The “would-be Weber” pursues an ideal structure of the State that actually enlarges the gap between administrative law and public policy phenomena. The legal speech still seeks to provide a coherent and predictable system. However, the Argentinean institutional fragility constantly transforms this speech into a set of rhetoric arguments to allow the application of emergency measures. Administrative Law in Argentina has not become closer to public policy phenomenon, but a server of it.
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https://hal-sciencespo.archives-ouvertes.fr/tel-03524477
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Tarcila Reis. Administrative policy law: a comparative institutional analysis of state reform in Chile, Brazil and Argentina. Law. Institut d'études politiques de Paris - Sciences Po, 2013. English. ⟨NNT : 2013IEPP0021⟩. ⟨tel-03524477⟩

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