In Administrative Law, motive and motivation are fundamental concepts that guarantee the legality and transparency of the acts of Public Administration. Although closely related, these concepts have distinct functions. The motive refers to the fact or right that justifies the act, while the motivation is the explanation of these motives, serving as a formal justification for the act.

This article addresses the differences between motive and motivation, the legal implications of each concept, and how both relate to the Theory of Determining Motives, in addition to exploring doctrinal and jurisprudential positions on the obligation to provide motivation.

What is a motive?

The motive is the factual or legal situation that justifies the practice of an administrative act. It is the element that motivates the Public Administration to act and, without it, the act lacks validity. For example, in the case of a disciplinary infraction, the motive would be the infraction committed by the employee that justifies a punishment, such as suspension or dismissal.

What is motivation?

Motivation is the explanation of the reasons that led to the practice of the administrative act. It serves to ensure that the Public Administration acts transparently and justifies its decisions. Motivation is provided for in article 2, sole paragraph, VII, of Law 9.784/99, which imposes on the Administration the duty to explain the factual and legal assumptions that justify the decision adopted.

Difference Between Motive and Motivation

Although motive and motivation are often confused, they are distinct. The motive is the underlying reason for the administrative act, while the motivation is the explanation of that reason. The motive is related to the existence of a factual or legal situation that authorizes the act, while the motivation is the formal justification that the Administration must provide.

Despite frequent confusion, the difference between motive and motivation is clear: the motive is the fact that authorizes the act, and the motivation is the textual explanation of that fact.

Doctrinal Positions Regarding the Obligation of Providing Reasons

Legal scholars are not unanimous regarding the mandatory nature of justification in administrative acts . There are several positions on the subject:

1. First position: Motivation is mandatory for binding acts and optional for discretionary acts (Hely Lopes Meirelles).
2. Second position: Motivation is mandatory in discretionary acts to control discretion and optional in binding acts, where the formative elements are already provided for by law (Oswaldo Aranha Bandeira de Mello).
3. Third position: All administrative acts, whether mandatory or discretionary, must be justified, based on democratic principles and transparency (Maria Sylvia Zanella Di Pietro).
4. Fourth position: Motivation is only mandatory if there is an express legal provision. Otherwise, it is not an indispensable requirement (José dos Santos Carvalho Filho).
5. Fifth position: Motivation is only mandatory for decision-making acts or when the law expressly requires it (Diogo de Figueiredo Moreira Neto).

Theory of Determining Motives

The Theory of Determining Motives establishes that, once the Public Administration explicitly states the reasons for an act, it becomes bound by them. If the reasons presented are false or nonexistent, the act may be annulled. This theory is widely accepted by Brazilian legal doctrine and jurisprudence, serving as a mechanism to prevent administrative arbitrariness.

Thus, if an administrative act is justified, even if justification is not mandatory, the reasons given must correspond to reality. Otherwise, the act will be invalidated.

Factual Reason and Legal Reason

The reasons can be classified into two types:

• Reason for the act: This refers to the specific situation that allows the Administration to choose between different options. For example, waiving the bidding process due to an emergency is a discretionary choice, based on specific facts.
• Legal basis: This refers to the obligation to perform an act in the face of an established legal situation. An example would be the mandatory retirement of public servants upon reaching 75 years of age, as stipulated in Article 40 of the Federal Constitution.

While a factual motive grants the Administration a margin of discretion, a legal motive is bound by law.

Motivation aliunde or per relationem

Motivation aliunde, also called per relationem , is a form of motivation in which the justification for the act is found in another document, such as previous opinions or decisions. This type of motivation is accepted in Brazilian Administrative Law and allows the Administration to refer the justification to a previous act, provided that it has adequate foundation.

Aliunde motivation is quite common in complex administrative processes, in which the decision-making act is based on technical opinions or reports issued by specialized bodies.

The moment of motivation

The justification must be presented at the time the administrative act is carried out, or immediately afterward. However, the Superior Court of Justice (STJ) admits that the justification may be presented later, provided that the reasons that underpinned the decision already existed when the act was carried out.

This allows the Public Administration to correct any omissions in the justification, provided that the justifying facts are valid and pre-existing.

Congruence between the motive and the result of the act.

The validity of an administrative act depends on the congruence between the motive and the result of the act. The Administration must ensure that the motive presented adequately justifies the result achieved. Otherwise, the act may be considered invalid.

According to Law 4.717/1965, which regulates popular action, an administrative act is null if the reasons justifying it are nonexistent or inadequate in relation to the result. The congruence between motive and result is fundamental for maintaining legality and justice in administrative decisions.

Exceptions to the Motivation Rule

In some cases, justification may be dispensed with. A classic example is the dismissal of civil servants holding appointed positions, which can occur without the need for a formal presentation of the reasons (dismissal at will ). However, if the Administration chooses to justify the act, it becomes bound by the reasons presented.

Final Words

Motive and justification are cornerstones of legality and transparency in Public Administration. While motive refers to the cause that justifies the practice of an act, justification is the formal explanation of that justification. The correct application of these concepts is essential to guarantee social and judicial control of Administrative Acts.

The Theory of Determining Motives reinforces the importance of ensuring that the motives presented by the Administration are in accordance with the reality of the facts. In this way, it ensures that administrative acts are carried out within the limits of legality, preventing arbitrariness and strengthening the public's trust in public decisions.

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References

CARVALHO FILHO, José dos Santos. Manual of Administrative Law. 38th ed. rev., updated, expanded. Rio de Janeiro: Atlas, 2024. E-book. (1 online resource). ISBN 9786559776078. Available at: https://integrada.minhabiblioteca.com.br/books/9786559776078. Accessed on: September 7, 2024.

CARVALHO, Matheus. Manual of Administrative Law. 6th ed. Salvador: JusPodivm, 2019. 1248 p. ISBN 9788544225394.

OLIVEIRA, Rafael Carvalho Rezende. Course in Administrative Law. 12th ed. rev., updated, expanded. Rio de Janeiro: Método, 2024. E-book. (1 online resource). ISBN 9786559649600. Available at: https://integrada.minhabiblioteca.com.br/books/9786559649600. Accessed on: September 12, 2024.

BRAZIL. Law No. 4.717, of June 29, 1965. Regulates Popular Action. Official Gazette of the Union: section 1, Brasília, DF, p. 6.985, July 5, 1965. Available at: https://www.planalto.gov.br/ccivil_03/leis/l4717.htm. Accessed on: September 17, 2024.
BRAZIL. Law No. 9.784, of January 29, 1999. Regulates the administrative process within the scope of the Federal Public Administration. Official Gazette of the Union: section 1, Brasília, DF, p. 1, Feb. 1, 1999. Available at: https://www.planalto.gov.br/ccivil_03/leis/l9784.htm. Accessed on: Sep. 17, 2024.