Notorious knowledge (notório saber) is an indeterminate legal concept that designates the public and technical-scientific recognition of an individual's exceptional expertise in a specific field of knowledge. Transversal to the branches of Constitutional, Administrative, and Educational Law, this institute serves as the basis for everything from filling high-ranking positions in the Judiciary to the direct contracting of specialized technical services by the Public Administration, acting as a legitimacy criterion for exceptions to the ordinary regime of public tenders and bidding processes.
1. Definition, Concept, and Legal Nature
Notorious knowledge is classified, from the perspective of the General Theory of Law, as an indeterminate legal concept. Its definition is not static, requiring a process of concretization by the interpreter in light of the specific case. In legal doctrine, notorious knowledge is understood as the degree of profound, specialized knowledge that is widely recognized by peers, institutions, and society, which distinguishes a professional in the exercise of their science, art, or technique.
The legal nature of the institute is that of a special qualification requirement or eligibility condition. It is not to be confused with mere academic degrees or length of service; it is an intrinsic quality of the subject, but one that must be verifiable through objective external criteria, such as publications, titles, awards, performance in prominent roles, and acclaim by specialized critics.
2. Historical Origin and Evolution
The genesis of the term dates back to the Roman Law tradition and the appreciation of the jurisconsultus, whose authority (auctoritas) derived from recognized knowledge rather than mere formal power. In Brazilian constitutionalism, the requirement of "notorious legal knowledge" was consolidated in the 1891 Constitution for filling vacancies in the Supreme Federal Court, remaining present in all subsequent republican charters.
In Administrative Law, the evolution of the institute is linked to the State's need to hire professionals of unique excellence. The transition from Law 8.666/1993 to the New Bidding Law (Law 14.133/2021) refined the concept, linking it to the infeasibility of competition due to the uniqueness of the contractor's expertise.
3. Legal and Constitutional Provisions
The Brazilian legal system establishes notorious knowledge in several fundamental provisions:
- Federal Constitution (CF/88):
- Art. 101: Requirement for Justices of the Supreme Federal Court (notorious legal knowledge).
- Art. 73, § 1º, III: Requirement for Ministers of the Federal Court of Accounts (notorious legal, economic, financial, or public administration knowledge).
- Art. 131, § 1º: Requirement for the Attorney General of the Union.
- Law No. 14.133/2021 (New Bidding Law):
- Art. 6º, XVIII: Defines "notorious specialization" (a related term) as previous performance, studies, experience, publications, or other elements that allow one to infer that the professional's work is essential and indisputably the most appropriate for the full satisfaction of the contracted object.
- Art. 74, III: Provides the basis for the unenforceability of bidding for specialized technical services of a predominantly intellectual nature with professionals of notorious specialization.
- Law No. 9.394/1996 (LDB - Education Guidelines and Bases Law):
- Art. 61, IV: Allows professionals with notorious knowledge, recognized by educational systems, to teach content in areas related to their training for professional education.
4. Practical Application and Jurisprudential Understanding
The jurisprudence of Superior Courts has focused on notorious knowledge, especially in cases of administrative improbity and constitutional control of appointments.
Supreme Federal Court (STF)
The STF, in the judgment of RE 656.558 (General Repercussion Theme 309), consolidated the understanding that the hiring of lawyers by the Public Administration through the unenforceability of bidding is lawful, provided that the uniqueness of the service and the professional's notorious specialization are present. The Court emphasized that notorious knowledge does not imply exclusivity (being the only one in the country), but rather a qualification such that the manager's choice is based on criteria of trust and unquestionable technical excellence.
Superior Court of Justice (STJ)
The STJ has vast jurisprudence (e.g., REsp 1.210.916/RS) delimiting that notorious knowledge must be demonstrated documentarily in the administrative process. The Court rejects the pure discretion of the manager, requiring that the "notoriety" be proven by objective elements provided for in the governing legislation, under penalty of nullity of the act and the configuration of damage to the public treasury.
5. Related Principles and Doctrinal Divergences
The institute dialogues directly with the following principles:
- Principle of Efficiency: Justifies the search for the most qualified professional to ensure the best result for the public interest.
- Principle of Impersonality: Acts as a counterpoint; notorious knowledge cannot serve as a shield for favoritism (nepotism or clientelism).
Doctrinal Divergence: There is a classic debate regarding the objectivity vs. subjectivity of notorious legal knowledge for entry into the magistracy. Part of the doctrine argues that the requirement should be assessed by strictly academic criteria (doctorate, professorship), while another current, which is majority in political practice, maintains that notorious knowledge is demonstrated by professional trajectory and unblemished reputation, granting the Executive Branch and the Senate a margin of political appreciation in the choice.
6. Contemporary Relevance and Practical Impacts
In the current scenario, notorious knowledge assumes a central role in Professional and Technological Education (EPT) and in the context of the High School Reform. The possibility for professionals without a teaching degree, but with notorious technical knowledge, to teach in technical courses aims to bring academia closer to the job market, although it faces criticism from sectors that defend the indispensability of pedagogical training.
In the realm of Digital Law and new technologies, notorious knowledge has been invoked for the formation of ethics and Artificial Intelligence regulation committees, where the speed of innovation outpaces traditional academic training, valuing the expert with cutting-edge practical experience.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Brasília, DF.
- BRAZIL. Law No. 14.133, of April 1, 2021. Administrative Bidding and Contracts Law.
- BRAZIL. Law No. 9.394, of December 20, 1996. Law of Guidelines and Bases of National Education.
- STF. Extraordinary Appeal 656.558/SP. Rapporteur: Justice Dias Toffoli. Judged on 09/09/2020.
- STJ. Special Appeal 1.210.916/RS. Rapporteur: Justice Napoleão Nunes Maia Filho. First Panel.
