A superação da dicotomia entre serviços públicos e atividades econômicas

Abstract

The research questions the theory in which the economic legal order established under the Brazilian Constitution may be divided into two legal categories: public services and economic activities stricto sensu. In this theory, on one hand, the public service would constitute those economic activities in a broad sense in which there is the satisfaction of social interests, owned by the State, exploited under public law and on a monopoly basis. Economic activities in the strict sense, on the other hand, satisfy collective interests and are exercised under free initiative and competition (except for constitutional monopolies), being exploited under private law. The dis-sertation criticizes this theory because it understands that it is not enough to understand the complexity of the economic legal order, due to the crisis of the Welfare State, with the conse-quent privatizations and regulatory reforms and the appearance of an Ensuring State. As a hypothesis, it is suggested that the economic legal order is not to be understood in a dichotomous way, but through a theoretical model that considers the multiplicity of regulations applicable to economic activities in a broad sense. The text revisits the concepts of public service, economic activity and constitutional monopoly, in order to understand them according to this new context of the State and law. With this premises, the existing regulation on economic activities is analyzed, in such a way that it was possible to demonstrate the variability of regulations go beyond the traditional theoretical precepts, which fixed interpretations inconsistent with the law. In these terms, throughout the research, the hypothesis was confirmed and is proposed a brief first elaboration on how to understand the economic legal order based on its multiple regulations.