In July 2019, the Brazilian President of the Republic presented the Constitution amendment bill (PEC) No. 108/19, which would prohibit limitations on professional practices and remove the mandatory registration for some professions with councils, in addition to transforming these institutions into private non-profit organizations. Many professional councils rebelled against the government's bill, justifying uncertainty and potential dangers to society if the amendment was approved (RBA, 2019). The proposition rekindles an old debate that started with Law 9.649/98, which defined councils as private institutions but ended up being considered unconstitutional by the Brazilian Federal Supreme Court (STF) in the judgment of the Direct Action of Unconstitutionality No. 1717-6.1

Our objective in the present study is, through a legal-economic approach, to evaluate the relationship between economic development and state intervention. Therefore, we start from the premise of the factual and economic overcoming of the exploitation theory, which argued that capital is accumulated more where it already exists in large quantities and gradually dwindling where it is already scarce (MARX, 2019, p. 840-844), and that for a few to get rich, many will become poorer. Financial resources around the world have increased exponentially throughout history,2 which has benefited human society. That can be clearly seen by looking at the huge difference in the quality of life between a citizen of the current world and a compatriot from the previous century. In the words of Mises (2010, p. 691):

Only people blinded by preconceived ideas and partisan prejudices could resort to such an explanation [of the exploitation theory] at a time when the industry supplies the masses with new goods, hitherto unknown, and makes satisfactions available to the average worker with which, in the past, no king could even dream.

Therefore, it seems unquestionable the claim that the amount of wealth in the world has multiplied dramatically, which has led to an exponential increase in life quality, increasing wealth even in the poorest countries. The regions with greater economic freedom have this impact more perceptible than in those with less freedom precisely because of the ease in wealth circulation (graphs 1 and 2). We will address this issue further in Section 3.

Graph 1 Source: (OUR WORLD IN DATA, 2020, online).

Graph 2 Source: (OUR WORLD IN DATA, 2016, online).

This wealth multiplication began as a result of the social stability provided by the Rule of Law, which allowed voluntary exchanges without violent disputes. This legal stabilization started in the 18th century, stimulated the crucial notion that the State should not or could not control what an individual produces with his work and his property (SMITH, 1996, p. 367-434).

In Law, this notion was materialized as the First-Generation human rights (NOVELINO, 2016, p. 46-47). As the western civilization took those rights for granted, we started to look for other guarantees, hence the so-called Second, Third, and even Fourth and Fifth-generation rights (MARTINS; MENDES; NASCIMENTO, 2012, p. 696-697). But curious aftermath is being experienced. Insofar as the so-called First-Generation rights represented the withdrawal of the State from the private life (negative rights), all other dimensions of rights demanded the State once again intervening in the private life (positive rights). The Second-Generation required the State to provide positive rights such as education, health, work, and social security. Third-Generation determines that the State acts guaranteeing peace, security, protection of the environment, protection for the disabled, and so on (MARTINS; MENDES; NASCIMENTO, 2012, p. 444-445).

All these expectations provoked a clash with First-Generation rights, resulting in several conflicts between fundamental rights. Weighing techniques for resolving disputes on apparent conflicts between rights and guarantees have gained notoriety in judgments and doctrines in recent years. In this field, the Brazilian Supreme Court has stood out with the expansion of traditional hermeneutics techniques, sometimes transplanting methods3 of legal theory from other countries, such as the interpretation of “law as integrity,”4 created and developed by Ronald Dworkin to be used in the common law system. This kind of activism gives the impression that the national legal system has become some kind of chimera, trying to conform dimensions of fundamental rights in constant tension with interpretive techniques coined for different legal systems.

Despite the demonstrated decline in the relevance of the individual rights to the State and collective protagonism, and the enormous importance of debating this political movement, for the purposes of this article, we will use a very emblematic outline of this tortuous legal and economic path Brazil has been conducted through. We will problematize the Brazilian state regulation of professions and the so-called professional councils, responsible for regulating, organizing, and controlling the professions of given expertise or area of activity. Are those institutions really needed? Is the regulation more aligned to the consumer needs than the freedom of contract?

Through the methodology of qualitative and quantitative research, in national and international indexation systems, under the perspective of the economic liberalism approach, we hope to answer those questions in the Brazilian setting along with this paper, although not expecting to exhaust the subject.

In the past, guilds, or trade corporations, were responsible for aggregating any persons who proposed to perform a certain activity, defining, for example, prices to be charged and to whom a certain product or service should be provided (MISES, 2010, p. 373). It is not surprising that the objective of these corporations was to defend the interests of their associates since they were their actual clients, and not the consumers themselves.

The 1824 Constitution of the Empire of Brazil in its art. 179 extinguished professional corporations in Brazil, so that the professions would probably acquire for the first time, a free character in the national territory. Thus, whoever wanted to practice a certain activity, was no longer compelled to report to any professional corporation, being able to act as they pleased, only respecting the limits of the Law. This characteristic was maintained by the first constitution of the Brazilian Republic in 1891, thanks to the provision of art. 72, §24, which guaranteed the free exercise of any moral, intellectual, and industrial professions.

Nonetheless, during the Getulio Vargas administration, the 1934 Constitution expressly stated in its art. 5, XIX, k), that it was the competence of the Union to legislate on "conditions of capacity for the exercise of liberal and technical-scientific professions as well as journalism." If we review that historical period, Vargas had just been re-elected in a troubled world context. Emerging from the 1930's revolution, and sympathetic to models that proposed to centralize control of the population and the State in the hands of the ruler, Vargas overthrew the Federal Constitution in 1931. Influencing the 1934 Constitution enormously, he shaped it to his project of power, which can be confirmed by the express constitutional provision for control of the press. Following the economic model of Mussolini's "Corporate State," Getulio created a dependency on all private activities guaranteed by the State, from those of autonomous and self-employed professionals5 to working relationships between private individuals, which was consolidated on the Labor Law (CLT), in 1943.6 As Mussolini himself would say, "everything within the State, nothing outside the State, nothing against the State."

Individual freedom, the true antagonist of totalitarianism (ARENDT, 1989, p. 363), remained restricted in the following Federal Constitutions. The 1937 Constitution was prescribed in its art. 122, 8) that Brazilians and foreigners would be guaranteed the right to "freedom of choice of profession or the type of work, industry or commerce, subjected to the conditions of capacity and restrictions imposed by the public interests under the terms of the law." This article was soon suspended, in 1942, due to the presidential decree that declared a state of war in Brazil when the country joined the allies in World War II. The Constitutions of 1946 and 1967 determined, with identical wording, that the Union would legislate on conditions of capacity for the exercise of the liberal and technical-scientific professions. 7

Finally, the current 1988 Constitution was maintained in its art. 22, XVI, among other State interventions on private activity, the Union's private competence to legislate on the organization of the national employment system and conditions for the exercise of professions, and so it has done. According to the Ministry of Labor, there are 68 professions currently regulated in Brazil (CBO, 2020). It is worth mentioning that several professional regulation laws, such as the one that controlled journalistic work during Getulio's Estado Novo, are already expressly or tacitly revoked.

In this article, we will stick only to those still in effect. From this perspective, only one Law from the 1891 Constitution period still applies, but none from the period between the 1934 and 1937 Constitutions. From the 1946 Constitution period, 19 laws remain, representing 28% of the total. Many laws still in effect were enacted during the 1967 Constitution, a total of 32, which represents 47% of the total. Since the 1988 Constitution, 16 laws have been created; therefore, 24% of the assessed universe (graph 3).

Graph 3 Source: The author (2020).

The most widely used justification for this amount of regulation usually focuses on the explanation that government-accredited professionals are less likely to make mistakes or that regulation would prevent or mitigate consumers from being deceived (EXAME, 2020). In fact, the biggest concern should not be whether any professional is fallible or not. After all, training or certifications do not rule out human fallibility. The Law should always seek to distance itself from judgments of possibility, directing its energy towards judgments of factual and legal probability. These probability qualities can be verified only in concrete situations, and it is not possible to do it so for a generic collectivity.

Regulation never prevented, for example, a fraudster from deceiving, or avoided the mistake of those who cause damage without intention, even though they are regularly licensed. The hiring of an unskilled person who is not hiding such condition (what would constitute fraud and will occur, with or without a law that prohibits it) usually only affects those who are part of that contract. The individual must assume responsibility for their acts, both contracting and contracted parties, and any losses must be resolved between them or before the judiciary system. The more the State places itself as an intermediary or protector of the individuals, trying to shield and anticipate risks inherent in contracts, the more its freedom is curtailed, and the more power is concentrated in the hands of the government.

Thus, the preventive focus should be directed at the loss of third parties or damages beyond those expected or entitled to be supported in contractual relations.

This may involve, for example, a river that gets polluted because of action under an agreement, but that harms others who were not part of the original contract. In the economy, the impact of a person's actions on others not involved and not subject to charges or rewards from the original contract is called an externality, which can be positive, when it generates unexpected benefits, or negative when it causes losses (SOWELL, 2011, p. 546-549). Therefore, the State must try to prevent negative externalities during professional practice, which does not include the mere possibility of such occurrence in any generic profession.

When the regulatory laws themselves did not create professional councils, immediately afterward, ministerial decrees or acts were issued to do so. These are considered regulatory agencies; therefore, bodies of the Public Administration, responsible for controlling, coordinating, and regulating the individual in their professional practice. With a closer look and based on what was presented in the previous section, it is easy to see that Brazil still has, strictly speaking, the private sector subjected to state supervision. The ideal of State control over the market in a kind of centralized economy, a model of the Corporate State and notably Fascist,8 is still used in Brazil, despite the tone of freedom that leads the wording of the current constitution.9

What usually occurs is that the population tries to circumvent these legal determinations that theoretically would be protective to the worker, in order to get rid of bureaucratic bonds and manage to survive and/or perform acts of the ordinary life that would otherwise be rendered unfeasible or extremely difficult. It is usually the creative use of hiring individuals as a legal entity to circumvent heavy taxation and the troublesome labor law (COPOLA, 2017). Another way to escape bureaucracy is the so-called "informal work," which usually results in heavy unrest for employees and employers due to the lack of legal certainty in their relationship (SILVEIRA; ALVARENGA, 2019). The rules that would be used to protect workers are the ones that harm them the most, making hiring unfeasible due to the high costs associated with the compliance with the Law.

Is there really a need for so much control? The Supreme Court has already positioned itself in the sense that professional freedom is the rule, while intervention in economic activity is exceptional, according to the excerpt from the following ruling:

Not all occupations or professions can be conditioned to the fulfillment of legal conditions for their exercise. The rule is freedom. Only when there is a harmful potential in the activity may it be required to enroll in a professional supervisory board (RE 414.426, Rel. Min. Ellen Gracie, Tribunal Pleno, j. 01.08.2011, DJe-194, Divulg. 07.10.2011, Public. 10.10.2011, Menu vol-02604-01, p. 76).

Two different situations are addressed in this emblematic citation. One that not every profession can be conditioned to the creation of a law for its exercise, and two that the registration in the council can only be required when there is a potential for harm in professional activity. Now, what makes someone a professional? Would it be exercising an activity, having academic expertise, or being enrolled in a professional council? According to Brazilian Law, any of the cases, sometimes combined, are necessary to define someone as a professional. Since "harmful potential" is a blank expression, we will use the definition contained in the Amendment Bill 108/19, which prohibits professional regulation unless its absence characterizes a risk of concrete damage to life, health,10 safety,11 or social order.12 It is important to highlight that activity to be considered as a risk of concrete damage. It is not enough that the profession is merely related to life, health, safety, or social order. There must be a relevant probability of harm arising from the unregulated performance of the professional.

Thus, we avoid the extensive interpretation of "harmful" (everything that is capable of causing damage, which could involve virtually any activity), seeking a restrictive interpretation (probability of causing significant damage, notably physical, environmental, or serious property damage). Professions in which poor performance can be reversed via negotiation or torts, we understand, are without harm potential. Using the criteria of those professions that can cause negative externalities or which reversion would be over costly, and scanning the professions currently regulated by Law, it is possible to sift the ones that could really be potentially harmful. Those who work in these specific risk professions in a reflexive manner or correlatedly, such as radiology technicians,13 are not necessarily prone to cause harm under these criteria because they are not decision-making professions, only performing the tasks necessary for a given activity in accordance with the definition made by a person responsible for that function. Damages caused by this type of professional, upon following orders, are the responsibility of their superior when carried out exclusively on their own behalf. It is their responsibility with or without regulatory Law. Analyzing the content of each Law, it is possible to detect some of them solely meant to describe professions or to merely create a professional council. Those professions are deemed without harm potential as well.

It so happens that in Brazil, laws exist to regulate professions that would hardly need any kind of government accreditation. It is curious the necessity to create laws that regulate professions such as masseuse,14 rodeo cowboy15 , or sommelier,16 to name a few. Of the 68 professions currently regulated, 54 of them, a total of 79%, were understood to be without the probability of concrete damage17 under the criteria presented (table 1):

The Heritage Foundation classifies the economic freedom of countries in the world according to a scale ranging from 0 to 100 in four categories, each with three parameters.27 It is the average of these categories that defines the classification of the economy, being free (100-80),28 mostly free (79.9-70), moderately free (69.9-60), mostly unfree (59.9-50), and repressed (49.9- 40).

Brazil scores 53.7 and is in the 144th position of the ranking, being considered a mostly unfree economy.29 Scoring 49.5, the Democratic Republic of Congo, the first country in the range of repressed economies, is in position 162. Brazil is only four points, and eighteen positions, from economic repression. In the regulatory efficiency category, Brazil scores 60.5 in economic freedom, 49.5 in labor freedom, and 77.2 in monetary freedom. Freedom of business and work suffered a drastic decline between 2005 and 2015,30dropping from 70 points to less than 53.6 (graph 5). In 2017, after the labor reform, the rating rose to 61.3, and in 2020 it is scoring 60.5, close to the average of 63.8 that is counted for the world.

Graph 5 Source: (INDEX OF ECONOMIC FREEDOM, 2020).31

This drop comes as no surprise when these rates are confronted with the number of regulations approved in the period. Of the 16 regulatory laws created since 1988, 12 (75%) were enacted between 2007 and 2013. If we extrapolate these figures, we will notice that the entire economy ends up tied: by the criterion built throughout this article, only approximately 21% of the professions currently regulated should require state approval to be exercised, and none should be subjected to public professional councils. This logic of crossing so many functions through Law, regulation, and taxation makes the whole process of providing services more costly and usually slower and more bureaucratic. Innovation itself is directly hampered by the absence of freedom. The greater the freedom, the more innovation flows, an assertion easily observed when comparing countries with a free economy with those without freedom32 (graph 6).

Graph 6 Source: (INDEX OF ECONOMIC FREEDOM, 2020).33

The free professional tends to have a greater incentive to innovate in view of constant competition, something that does not occur in a market that is strongly regulated and protected by market reserves.34 It is important to emphasize that poverty is directly proportional to intervention in the economy, which can be seen by the drastic drop in this figure, especially in the last three decades, after the average increase in the global economic freedom index (graphs 7 and 8). Once this logic is understood, it is possible to see that it extends to all social and economic fields. Countries with greater economic freedom are also those with the highest Human Development Index (HDI), security, educational quality, and efficiency of health systems.

Graph 7 Source: (THE WORLD BANK, 2020).

Graph 8 Source: (INDEX OF ECONOMIC FREEDOM, 2020).35

We will begin with the evaluation of the HDI measured by the UN, in which 188 countries are analyzed. Of these total, 49 are considered to be of very high human development (UNDP, 2019), with only 18 (37%) not being considered free or mostly free (INDEX OF ECONOMIC FREEDOM, 20 20) 36according to the Heritage Foundation ranking.37 Brazil is among the next 56, classified as high human development, in the 75^th position. In the same category are four countries (7%) that are mostly free.38 The only six free countries all have a very high HDI.

Moving on to security assessment, according to the ranking of the World Economic Forum, which promotes the Global Peace Index (GPI) (VISIONS OF HUMANITY, 2020), among the 13 countries considered to have a very high peace status, only two (15%) are not free or mostly free by the Heritage Foundation scale,39 but all free ones are in that category. Brazil is ranked 126^th out of a total of 163 countries and is considered of low peace. After the position 148^th, countries are classified as having very low peace. Among the 64 medium and low peace countries, only 6 (9%) are mostly free,40 all the other 24 mostly free countries are of high peace.

This scenario repeats itself when evaluating the quality of education. In 2018, the PISA ranking assessed school performance among 15-year-old students in 78 nations under their knowledge in mathematics, science, and reading. The best results are those considered to have a score above 500 (FACTS MAPS, 2020). Among the 20 countries in this range, only 4 (20%) are not considered free or mostly free by the Heritage index.41 Once again, all free countries are top-ranked. In this list, Brazil is placed in 66^th place and totals a score of 400 points, considered the worst classification for being below 450 points. Within the 34 countries with scores equal to or below 450, only 7 (21%) are mostly free.42

Finally, health is assessed by different criteria and research agencies. The most recognized that includes Brazil is Bloomberg (2020), which compares life expectancy, the cost of health care as a percentage of GDP, and the cost of health per capita to classify the world's health systems. According to the Bloomberg table, among the 20 most efficient countries in medical care, only 7 (35%) are not considered free or mostly free by Heritage.43 As in the other cases, the six freest countries are among those selected as the most efficient. The classification has 56 countries, and Brazil occupies the 51^st position. Between the 20^th and the 56^th position, a total of 10 countries (27%) are free or mostly free.44

On the other hand, the reader may access the tables and references presented to check that the countries among the last positions in all indexes are necessarily the least economically free countries, as Brazil's own positions illustrate. Only three countries with low economic freedom were among the best placed in any of the four indexes presented: China and Greece in two and Argentina in one.

It is necessary to overcome the national imaginary that everything needs to be authorized by the State, requiring its prior evaluation for operation, or even that the State is more appropriate than the individual to assess whether one service provider is better or worse than another. The most successful countries in the world, by any measurable criteria, are also economically free countries, which necessarily involves untangled and unregulated professional practice. Five of the six countries considered free by Heritage Foundation were among the best classified in the four indexes presented in this paper, as well as two countries that are considered mostly free.

It is important to emphasize that deregulating or freeing professional practice is not a synonym for the State to abstain completely from acting. In fact, it will reserve its interventions to efficiently license the few professions that need it or to curb cases of abuse in professional practice that need the State to mediate the solution. In this scenario, professional conduct is no longer the subject of administrative procedures and is now sanctioned in civil and criminal courts or, even worse, condemned to the ostracism of the consumers, a life sentencing penalty.

The structure of the councils itself has difficulties in keeping up with the current speed of technological and human development. To concentrate control of the professionals' performance in a country with continental dimensions like Brazil, and of a dynamic society like the contemporary one, in federal and regional public agencies, is the same as to sentence them to failure or unproductivity.

To free the professional work is an essential step to stimulate the national economy, generating wealth and potentially raising other national parameters such as human development, security, education, health, and peace. It may be necessary to finish cutting the regulatory ties that unite Brazil of today to that of totalitarian periods in our history and bet on a future of greater freedom, targeting the free and prosperous nations without ever renouncing individual achievements over the centuries.