"DUE PROCESS" AND LEGALITY CONTROL IN ADMINISTRATIVE MEASURES: USA VS. BRAZIL

Abstract

This article examines, from a comparative perspective, the structure of due process and legality review in administrative measures in the United States and Brazil. It argues that the difference between the two systems stems not only from the contrast between common law and civil law, but also from the way each legal order distributes authority between the Administration and the Judiciary and assigns a function to reason-giving and the rationality of administrative decisions. The study adopts a qualitative, bibliographical, normative, and case-law based methodology, using a functional comparative approach. It shows that, in the American model, due process operates as a variable guarantee, calibrated according to the affected interest and linked to a system of judicial review that distinguishes between independent judicial decision-making and supervision of administrative action. In Brazil, by contrast, administrative due process has been incorporated into a denser notion of legality, associated with adversarial participation, reason-giving, proportionality, protection of legitimate expectations, and broader control of administrative discretion. The article concludes that both systems reject arbitrariness, but diverge as to the density of procedural guarantees, the role of reasons, and the limits of judicial review.