A especulação sobre “liberdade econômica” das pequenas empresas no STF: uma análise ecológica da prática decisória do tribunal

Abstract

This research deals with the analysis of the intersystemic communication of the Brazilian Supreme Court (STF) in the form of speculation regarding the concept of “economic freedom”, in view of the normative expectations of small and medium-sized Brazilian companies included in the SIMPLES Nacional tax regime. The main theoretical framework of the research is Niklas Luhmann’s Systems Theory, together with Rafael Simioni’s Brazilian proposal of Intersystemic Communication for improvements to the German author’s thinking. Thus, the concept of intersystemic communication was approached in the traditional and improved form, and then the theoretical and methodological bases of the ecological analysis of Law (AEcoD) were deepened, especially the discussion on first poiesis, the concept of care (Sorge) and the functional-comparative method. Next, the location of the constitutional court and, specifically, the STF in the Systems Theory was made. Then, the central problem was introduced. The social system of the economy is unable to perceive its surroundings and only brings the problem of competition, which is poorly speculated by the court. Politics does not see this problem, as it is in a blind spot. It has been concluded that there are harmful environmental effects resulting from the bad speculation of the STF in the Brazilian context, as the SIMPLES tax system ends up preventing the poorest from having access to tax relief policies, and there is no prospect of improvement, including with the ongoing tax reform.