TITLE:
Renewal on Public Service Theory on Brazilian Law
AUTHORS:
Leonardo Antonacci Barone Santos
KEYWORDS:
Public Service, Regulation, Economic Order, Public Utilities, Brazilian Administrative Law
JOURNAL NAME:
Beijing Law Review,
Vol.15 No.2,
April
30,
2024
ABSTRACT: A significant segment of Brazilian administrative law scholarship considers that the economic order entails a dichotomy between public services and economic activities. The firsts would be activities entitled by the government, carried out exclusively by it and under public law, while economic activities would be private and carried out under free enterprise. This theorisation has been strongly criticised since the 1990s, given its inability to explain statutory law after several regulatory reforms. However, there is still a gap in the replacement of this theory, especially when it comes to suggesting new theoretical foundations for understanding the economic order. The study evaluates this longstanding theory and concludes that this supposed dichotomy does not exist in contemporary law. In response, it proposes new theoretical bases considering the broad application of free enterprise and the existence of multiple regulatory regimes, tailored to the technical and economic conditions of each sector.