FROM PROTECTION OF PROPERTY TO A USELESS DISTINCTION: THE CONCEPTS OF PUBLIC UTILITY AND PUBLIC NECESSITY (UTILIDADE E NECESSIDADE PÚBLICA) IN THE BRAZILIAN LAW OF EXPROPRIATION (1826-1941) - DOI: 10.12818/P.0304-2340.2024v84p45

Abstract

In 1826, the Brazilian parliament established two statutory causes for expropriation: public utility and public necessity. These terms were borrowed from French law, but gained a legislative meaning in Brazil that they did not have in Europe. This article discusses why the two concepts were created and how they were appropriated by doctrine and jurisprudence until they were united in the concept of public “utility or necessity” present in the expropriation law of 1941 and in the 1988 Constitution. I use mainly the annals of parliament to identify the theories that shaped the legal text of 1826 and the expropriation law of 1845. Second, I use texts from legal journals mainly from the early 20th century to identify to what extent the division between public utility and necessity was still operative, especially as it was incorporated in the 1916 civil code. I conclude that the division between public utility and necessity was proposed in 1826 to allow the state greater power to act without giving discretion to the executive branch. In 1845, the rules of expropriation for public utility were relaxed and the distinction lost much of its practical meaning. At the beginning of the 20th century, doctrine still discussed the distinction, but jurisprudence focused on the public character or not of the work. In the end, I discuss the role of history vis-à-vis dogmatics and how historians can help jurists understand legal texts more adequately. KEYWORDS: Expropriation. Public utility. Public necessity. History and dogmatics.