A PARTICULARIST MORAL VIEW: THE (IN)SUBSISTENCE OF THE PRINCIPLE OF THE SUPREMACY OF THE PUBLIC INTEREST BEFORE THE LAW OF ECONOMIC FREEDOM

Abstract

Administrative law, since the classics, is based on the premise that the public interest – an indeterminate concept – would always prevail over the private interest. With the advent of an eclectic constitution referred to as “principle” it should not be challenged. Its authoritarian bias, combined with the incompatibility with the pluralism of ideas assured as the foundation of the republic (Art. 1, Inc. V of the Constitution) may recommend its overcoming, or at least its delimitation as the reason for the existence of the institutes of public law, which is not sufficient in itself, as specific legal authorization and ample justification for the limitations of the particular interest are required. Furthermore, it must be considered that the aforementioned precept ignores that there is a public interest in private initiatives, especially when protected by the legal system. In this context, Law nº13 appears. 874/2019, designated as the Economic Freedom Law – LLE. Now, how can we defend that in an order that has freedom as a guarantee (Art. 2, Inc. I of the LL), which requires that state intervention be exceptional and additional (Art. 2, Inc. III of the LLE), that regulation must be previously proven (Art. 5 of the LLE) and that releasing the collective gain of the private sector (Art. 49-A, sole paragraph of the Civil Code) there is a principle that disregards private interest in an a priori manner. In the present study, in a moral particularist view, we will demonstrate how it is no longer necessary to have a new understanding of the principle of public interest, conforming it to the pluralist dictates of the constitution.