Aplicação dos royalties de petróleo e a garantia constitucional do desenvolvimento sustentável

This paper aims to demonstrate the connection between the application of revenues from oil royalties, exhaustible, even if the long term, and the importance of attempting to the constitutional goal of ensuring the sustainable development, including proposals of regulation. It aims to clarify the constitutional goal of ensure that national development, pointing out its relationship with the right to an ecologically balanced environment, also constitutional provision, demonstrating its important role as a mandatory vector to the Brazilian government. Search the legal nature of the oil royalties and analyzes the regulatory framework of oil royalties, which included extensive legislation, sparse and controversial, a fact that hinders the work of hermeneutist. Pays attention to some international experiences about the application of oil royalties, aiming to establish parameters of other models that can be followed. Exposes the oil royalties as a revenue differentiated, because of its exhaustible character, so that, imperatively, should be used in productive investments, according to intergenerational equity and sustainable development. Proposes a special regulation for revenues from oil royalties with clear criteria for the use of resources, restrictions for its application, as well as controls and sanctions

A tutela constitucional da exploração de petróleo em águas internacionais em face do princípio do desenvolvimento sustentável: a possibilidade de responsabilização civil do dano futuro

The demands brought by a society doomed to the constant production of global risks, which whose effects are not immediately noticed effects are not perceived immediately, claim from the Law a new Theory about the Risk, that would offer a broad environmental protection, at the same time it would still be compatible with the idea of economic efficiency, required by the Modern Industry. The expansion of the methods and technologies regarding the exploitation and production of oil causes the constant expansion of the exploitable boundaries, especially in ultra-deep waters with the Pre-salt layer, in Brazil, or the still incipient research about the polymetallic nodules and other mineral sources in international waters, like the Atlântico Sudoeste, by the Programme on Ocean Science in Relation do Non Living Resources (OSNLR), a global study performed in partnership with the Intergovernmental Oceanographic Commission, from UNESCO (IOC UNESCO) and also with the Division of Ocean Affairs and Law of the Sea (UNDOALOS). Thus, we aim to analyze the correlation, and possible collisions between the right to a balanced environment and the free exercise of economic activity and the occurrence of environmental damages from the perspective of the exploitation activities of oil and other natural resources in international waters, specifically in the Area, from the constitutional principle of sustainable development and its legitimacy by the environmental international protection. Therefore, this study also aims to evaluate the legal framework for exploration and production of oil in international waters, particularly in the Area, and appraise how the constitutional instruments and mechanisms for environmental protection can impact on the international environmental protection system in order to ensure the present and future generations an ecologically balanced environment, laid down in Article 225 of the Brazilian Constitution, even with so many risks posed by the activities of exploitation and production of oil in international waters. In the meantime, we intend to also intend to investigate the possibility of future liability for environmental damage in order to ensure that constitutional principle and, consequently, and try to define the concept of environmental damage and its implications on the constitutional principle of environmental protection. Given all that was in summary, this work aims to contribute to the evolution of the new Theory of Environmental Risk, turning the law into something more than a punitive or corrective element in this society, but into a legal risk management, that may be triggered even before the consolidation of the damage

Direito à moradia em cidades sustentáveis: parâmetros de políticas públicas habitacionais Natal 2013

The right to housing is included in several international human rights instruments and in Brazilian legal system integrates the constitutional catalog of fundamental social rights (art. 6) and urban development policy (art. 182 and 183). Besides, it is for all federative governments its effectiveness by building programs and improvement of housing conditions and sanitation (art. 23, IX), which justifies the investment in urban planning and public policy of housing affordability because they are tools for achieving this right. Newer strategies in this area have been based on tax incentives, combined with the mortgage as a way to induce the construction of new housing units or reform those in a precarious situation. However, there is still a deficit households and environmental soundness, compounded with the formation of informal settlements. Consequently, we need constant reflections on the issue, in order to identify parameters that actually guide their housing policies in order to meet the constitutional social functions of the city and ensure well-begins of its citizens (art. 182). On the other hand, the intervention of the government in this segment can not only see the availability of the home itself, but also the quality of your extension or surroundings, observing aspects related to environmental sanitation, urban mobility, leisure and services essential health, education and social assistance. It appears that the smoothness and efficiency of a housing policy condition to the concept of adequate housing, in other words, structurally safe, comfortable and environmentally legally legitimate, viable from the extensive coordination with other public policies. Only to compliance with this guideline, it is possible to realize the right to housing in sustainable cities

Iniciativa popular na concretização do direito fundamental à democracia

The Participatory Democracy is disseminated throughout the Principle of Popular Sovereignty. Since it spurs the participation of the people in the exercise of political power, it emerges as a conciliatory alternative to the Representative Regime - one of questionable legitimacy in account of the distortion it causes on the will of the public. It does so specially vis-à-vis the legislative, where the law is created. It s known that our Constitution (arts. 1º e 14, CF/88) provides for the means through which the members of the public may take part in the political process of the country, for it consecrates the plebiscite, the referendum and the popular initiative, all of them incipiently regulated by the Lei nº 9.709/98. It s our task, thus, to inquire, through deductive reasoning as well as the legal exegeses, the enforceability of the Popular Initiative as a means of popular emancipation, given that it enables the citizens to conscientiously participate in the public sphere. It has also an educational ethos which builds the capacity of individual to act, and, therefore, through thoughtful choices, enhance the legal system. Furthermore, the Lei da Ficha Limpa (LC nº 135/2010) surely represents a milestone in the Brazilian political history, since it accrued from a new way of social interaction allowed by the usage of communication technology on the pursuit of political morality. As a matter of fact, this bill is a clear example of how a legal act was legitimately proposed through Public Initiative. Hence, it s beneficial to actually make use of the Public Initiative, under the influence of the New Constitutional Hermeneutics, with a view to supporting social claims and promoting a dialogical relationship with the State in order to help it in the decisionmaking process. Thereat, we can achieve important civic spaces through which the fundamental right to democracy shall be materialized, tearing apart the old paradigms of inequality and, thus, promoting social justice

Parâmetros de concretização judicial do direito fundamental à saúde no fornecimento de medicamentos

In Brazil, social rights have always been considered secondary legal categories, whose implementation could wait for the pending of political decisions. At the end of the Second World War, International Law emphasizes the protection of human beings, raising his dignity as a legal pillar of the legal orders and one of the main foundations of Constitutions. At the post-positivism Constitutionalism, the realization of social rights receives special attention with the assumption of supremacy and normativity of the Constitutions, while the judiciary participates in the realization of democracy, not only as applicator of laws, but also as the guardian of constitutionality of the acts and administrative omissions, creatively contributing to the constitutional achievement, filling gaps and normative state omissions. In this aspect, the supply of medicines, whose costs can not be supported by the individual, keep a close connection with the right to life, health and dignity of the human being, as the subject of numerous lawsuits directed against the Public Administration. Such phenomenon has caused intense debate regarding judicial activism and legitimacy of these decisions, particularly on the need to define what are the limits and possibilities considering the principle of separation of powers and the principle of reserve of the possible; bieng this the problematic developed in this research. Thus, this research aims to verify the legitimacy of judicial decisions that determines to the Public Administration the compulsory providing of medicine to those who can not afford the cost of their treatment, as well as, contribute to the dogmatic constructions of parameters to be observed by judicial interference. Regarding the methodology, this research has an investigative and descriptive caracter and an theoretical approach based on bibliographical data collection (judicial and doutrine decisions) that received qualitative treatment and dialectical approach. As a result, it is known that the judicial decision that determines the supply of medicines to those individuals who can not afford them with their own resources is legitimate and complies with the democratic principle, not violating the principle of separation of powers and the reserve of the possible, since the judicial decison is not stripped with an uniform and reasonable criteria, failing to contain high burden of subjectivism and witch signifies a possible exacerbation of functions by the judiciary, suffering, in this case, of requirement of legal certainty. It is concluded that the Court decision that determines the government the providing of medicine to those who can not afford the cost of treatment should be based on parameters such as: the protection of human dignity and the minimum existencial principle, the inafastable jurisdiction principle; compliance critique of the possible reserve principle; subsidiarity of judicial intervention; proportionality (quantitative and qualitative) in the content of the decision; the questioning about the reasons for non-delivery of the drug through administrative via; and, finally, the attention not to turn the judiciary into a mere production factor of the pharmaceutical industry, contributing to the cartelization of the right to health

O licenciamento ambiental pelos municípios: uma análise sobre o federalismo cooperativo adotado pela Constituição Federal

In complex federal systems as that found in Brazil, which provides simultaneous attributions to of the Union, States and Cities in many aspects, the definition of performance limits of each of these entities, in procedural or material aspect, generates many (positive and/or negative) competence conflicts, bringing insecurity to general administered. Environmental licensing is one of the most important instruments of environmental management, seeking the realization of the fundamental right to an ecologically balanced and sustainable development. Despite its importance, the environmental licensing has not been more effective due the conflict related to the authority to regulate regardind environmental law. This essay will analyze the structure of competence distribution for conducting the environmental licensing processes, the conflict between laws, the performance of the municipal environmental agencies, the cooperation between the licensing agencies and the future about the additional regulatory law of article 23 of Federal Constitution

Democracia participativa e regulação econômica: uma questão de legitimidade

This work presents an analysis about the legitimation of independent regulatory commission`s rulemaking power by participation procedure. It is observed that political and administrative decentralization and fragmentation of State, with the purpose of approaching citizens and provide, more efficiently, the functions acquired by the passage of the Welfare State, leads to a deficit of legitimacy (democratic crisis), which is noticeable in the making of legal norms by directors of independent regulatory commission to regulate specific economic sector. However, we understand that this crisis stems from the observation of the contemporary world from dogmas and legal institutions of the eighteenth century, without their evolution and adaptation to the modern world. The legitimacy must be perceived as the justification of power, relation command /obedience, which, from the Modern State, has the democracy as standard. Therefore, just as the world has evolved and demanded political and administrative decentralization to accompany him, it is necessary to the development of the idea of representative democracy (formal legitimacy) to participatory democracy (legitimacy stuff). Legitimacy is not confused with the legality: as the legality is on observance to internal legal system, the "rules of play"; legitimacy, as inputs to be fed into this system, the selection of the different expectations in the environment. Nevertheless, the legitimacy will take place by legality, through introduction of rational and communicative procedures: procedures get fundamental importance because these will be the means to select the expectations to be introduced in the legal system in order to make decisions more fair, rational and qualified towards society. Thus, it is necessary to its opening to the environment for dialogue with the government. In this context, we try to make an analysis of constitutional norms based on systematic and teleological interpretation of these norms to build these arguments. According to the Constitution of 1988, participatory democracy is a result of the democratic principle (sole paragraph of art. 1 of the Constitution), and it is an expression of citizenship and political pluralism, both foundations of Republic (respectively Art. 1st, inc . V and II of the Constitution), as well as the national consciousness. From another point of view, that principle consists of an evolution in the management public affairs (principle of Republic). The right of interested participate in the rulemaking process derives both the principle of popular participation (part of the democratic principle) and the republican principle as the due process constitutional (art. 5, LIV and LV, CF/88) and the right to petition (Art . 5 °, inc. XXXIV, "a", CF/88), and it is the duty of the State not only be open to participation and encourage it. Ignoring stakeholder involvement in procedures and / or expressions compiled can be causes of invalidation of the rule of law produced by addiction of procedure, motive, motivation and/or because of the administrative act. Finally, we conclude that the involvement of stakeholders in the process of making rules within the independent regulatory commission is the legitimacy and the validity of rules; and that, despite of the expressions do not bind the decision making, they will enter the system as juridical fact, balancing the field of technical discretionary of agencies

Reserva de cargos e empregos públicos a pessoas com deficiência: instituições federais de ensino no RN

With a focus on the need for effectiveness of fundamental rights of persons with disabilities, this dissertation held a scientific research to analyze the degree of implementation of reservation of positions and public jobs to people with disabilities in the Brazilian State, because the 1988 Federal Constitution expressly determined such a reservation in your article 37, VIII. Highlight that this subject is enough evidence, given the large number of open public competition in recent years in Brazil, as well as recent proposals to grant equal rights to blacks (Bill nº 6,738/2013). In addition, the wording the constitutional device comes fomenting heated discussions on the subject, which are flowing on the doors of the judiciary and are spicy because such protection Microsystem vulnerable group has several gaps in the regulation of this policy. However, the research produced, unlike other related theme, does not address the problem of inefficiency in its constitutional theory, that is, abstractly, but also focuses on a specific analysis of this ineffectiveness within Brazilian society, so that research based on a bibliographical analysis, plus a study case law, at the national level, as well as in field research, while case study, focusing on the technique of the analysis of everyday life, because it was believed that the degree of realization of the constitutional norm debated is not yet a satisfactory degree of effectiveness. Soon, the methodological procedures chosen confirmed such a hypothesis and contributed to the study of realization of the fundamental right to work of people with disabilities in Brazil, the light of a Constitutional State, proposing a constitutionally appropriate model the greater effectiveness of the constitutional norm studied

Os crimes de mídia no paradigma democrático constitucional

The criminal responsibility of the media is analyzed when the criteria for production of news and events involving public safety are produced without considering the technical, legal and ethical practice of journalism in the media factors. Freedom of speech, expression of thought, necessary for professional qualifications and constitutional limits, reaching criminal constitutional principles and the possibilities of criminal liability for offenses practiced in the media are present as key factors legal dialogue in this work. The judgment of the Supreme Court on the unconstitutionality of Law nº. 5.250/67 called Media Law caused a gap in the national legal system, forcing the use of the criminal code to address issues that involve crimes produced in media professional performance. The presumption of innocence is ignored by the professional media during a police investigation where the information published does not respect, including constitutional guarantees: the right to privacy, honor and image. The right to information and the duty to inform media are worked in its constitutional aspect, considering that the same information should be produced is guided by the quality and guiding principles of truth. The constitutional concept of media is presented as information with the appropriate language of the news media, produced and disseminated through the vehicles of mass media, whether in print or digital platform. The presented model of the legal right to information is outlined from a constitutional hermeneutics, increasing the production of news as a result of the occupation of journalist in different news platforms, guaranteeing the quality of this prolific law. Under the Freedom of professional activity of the journalist, the constitutional limits are addressed in line with the reality of (non) regulation of their profession, considering the constitutional abuses committed in the exercise of that activity linked to communication fences. Jusphilosophic field reaches the limits of the duty of truth in journalism as a tool for spreading news, respect the audience and compatibility with the constitutional state. Using the conceptual and doctrinal aspects, this criminal offense is parsed from the journalistic practice and the publication of news involving public safety, with the hypothetical field consummation of that crime through the eventual intention. As a form of judgment against these crimes produced in honor media presents the court of the jury as a legitimate form of democratic decision

O direito fundamental contra a autoincriminação: a análise a partir de uma teoria do Processo Penal Constitucional

The right against self-incrimination is a fundamental right that works in the criminal prosecution, and therefore deserves a study supported by the general theory of criminal procedure. The right has a vague origin, and despite the various historical accounts only arises when there is a criminal procedure structured that aims to limit the State´s duty-power to punish. The only system of criminal procedure experienced that reconciles with seal self-incrimination is the accusatory model. The inquisitorial model is based on the construction of a truth and obtaining the confession at any cost, and is therefore incompatible with the right in study. The consecration of the right arises with the importance that fundamental rights have come to occupy in the Democratic Constitutional States. In the Brazilian experience before 1988 was only possible to recognize that self-incrimination represented a procedural burden for accused persons. Despite thorough debate in the Constituent Assembly, the right remains consecrated in a textual formula that´s closer to the implementation made by the Supreme Court of the United States, known as "Miranda warnings", than the text of the Fifth Amendment to the U.S. Constitution that established originally the right against self-incrimination with a constitutional status. However, the imprecise text does not prevent the consecration of the principle as a fundamental right in Brazilian law. The right against self-incrimination is a right that should be observed in the Criminal Procedure and relates to several of his canons, such as the the presumption of not guilty, the accusatory model, the distribution of the burden of proof, and especially the right of defense. Because it a fundamental right, the prohibition of self-incrimination deserves a proper study to her constitutional nature. For the definition of protected persons is important to build a material concept of accused, which is different of the formal concept over who is denounced on the prosecution. In the objective area of protection, there are two objects of protection of the norm: the instinct of self-preservation of the subject and the ability to self-determination. Configuring essentially a evidence rule in criminal procedure, the analysis of the case should be based on standards set previously to indicate respect for the right. These standard include the right to information of the accused, the right to counsel and respect the voluntary participation. The study of violations cases, concentrated on the element of voluntariness, starting from the definition of what is or is not a coercion violative of self-determination. The right faces new challenges that deserve attention, especially the fight against terrorism and organized crime that force the development of tools, resources and technologies about proves, methods increasingly invasive and hidden, and allow the use of information not only for criminal prosecution, but also for the establishment of an intelligence strategy in the development of national and public security

Direito fundamental à saúde: parâmetros e alternativas para sua concretização no Brasil

If, on one hand, only with the 1988 Federal Constitution the right to health began to receive the treatment of authentic fundamental social right; on the other, it is certain since then, the level of concretization reached as to such right depicts a mismatch between the constitutional will and the will of the rulers. That is because, despite the inherent gradualness of the process of concretization of the fundamental social rights, the Brazilian reality, marked by a picture of true chaos on public health routinely reported on the evening news, denatures the priority status constitutionally drew for the right to health, demonstrating, thus, that there is a clear deficit in this process, which must be corrected. This concern regarding the problem of the concretization of the social rights, in turn, is underlined when one speaks of the right to health, since such right, due to its intimate connection with the right to life and human dignity, ends up assuming a position of primacy among the social rights, presenting itself as an imperative right, since its perfect fruition becomes an essential condition for the potential enjoyment of the remaining social rights. From such premises, this paper aims to provide a proposal for the correction of this problem based upon the defense of an active role of the Judiciary in the concretization of the right to health as long as grounded to objective and solid parameters that come to correct, with legal certainty, the named deficit and to avoid the side effects and distortions that are currently beheld when the Judiciary intends to intervene in the matter. For that effect, emerges as flagship of this measure a proposition of an existential minimum specific to the right to health that, taking into account both the constitutionally priority points relating to this relevant right, as well as the very logic of the structuring of the Sistema Único de Saúde - SUS inserted within the core of the public health policies developed in the country, comes to contribute to a judicialization of the subject more in alignment with the ideals outlined in the 1988 Constitution. Furthermore, in the same intent to seek a concretization of the right to health in harmony with the constitutional priority inherent to this material right, the research alerts to the need to undertake a restructuring in the form of organization of the Boards of Health in order to enforce the constitutional guideline of SUS community participation, as well as the importance of establishing a new culture budget in the country, with the Constitution as a compass, pass accurately portray a special prioritization directed constitutional social rights, especially the right to health

A contribuição de Diké na formação do Emílio ou o papel da jurisdição constitucional na concretização do direito social à educação

The fundamental social right to education has a lengthy constitutional argument, having been declared as a right to everyone in the Title dedicated to the fundamental rights and warrants and, later, scrutinized in the Social Order Chapter exclusively devoted to this theme, where specific rights are guaranteed and fundamental duties are imposed to family, society, and state. In that which concerns education, the 1988 Constitution is the result of a historical-normative process which, since the days of the Lusitanian Empire wavering between distinct levels of protection warrants in some way the educational process. Nevertheless, not even the State s oldest commitment to education has been fully achieved, namely, the annihilation of illiteracy. Even as other fundamental social rights, education is inflicted with the lack of effective political will to reach its fulfillment, and this is reflected in the production of doctrine and jurisprudence which reduce the efficacy of these rights. The objective of this work is to analyze what part is to be played by the constitutional jurisdiction in the reversal of this picture in regards to the fulfillment of the fundamental social right to education. Therefore it is indispensable to present a proper conception of constitutional jurisdiction its objectives, boundaries and procedures and that of the social rights in the Brazilian context so as to establish its relationship from the prism of the right to education. The main existing obstacles to the effective action of constitutional jurisdiction on the ground of social rights are identified and then proposals so as to overcome them are presented. The contemplative and constructive importance of education in the shaping of the individual as well as its instrumental relevance to the achievement of the democratic ideal through the means of the shaping of the citizen is taken into account. The historical context which leads to the current Brazilian educational system is analyzed, tracing the normative area and the essential content of the fundamental right to education aiming to delineate parameters for the adequate development of the constitutional jurisdiction in the field. This jurisdiction must be neither larger nor narrower than that which has been determined by the Constitution itself. Its activity has been in turns based on a demagogic rhetoric of those fundamental rights which present a doubtful applicability, or falling short of that which has been established showing an excessive reverence to the constituent powers. It is necessary to establish dogmatic parameters for a good action of this important tool of constitutional democracy, notably in regards to the fundamental social right to education, for the sake of its instrumental role in the achievement of the democratic ideals of liberty and equality

Liberdade de expressão artística: concepções filosóficas, fundamentalidade constitucional e política da pluralidade

The right to artistic expression, freedom granted in the western democratic constitutionalism, is a fundamental right that cyclically, compared to other cohesive rights of expression, has been forgotten and put in an irrelevant juridical-dogmatic position. The first reason for this behaviour that disesteems artistic freedom is the valorisation of rationalism and scientificism in the modern society, subordinating academic researches to utilitarianism, relegating the purpose of feelings and spirituality on men s elocution, therefore, we investigate, guided by philosophy, the attribution of art on human formation, due to its capacity in harmonising reason and emotion. After that, we affirm the fundamental right to artistic expression s autonomy in the 1988 valid constitutional order, after a comparative explanation of freedom in the Fundamental Laws of United States, Portugal, Spain and Germany; and the construction historic-constitutional of the same right in the Brazilian Constitutions. In this desiderate, the theoric mark chosen is the Liberal Theory of the fundamental rights, guiding the exam through jusfundamental dimensions: juridical-subjective and juridical-objective. Whilst the first, classical function of resistance, delimitates the protection area of the artistic expression right from its specific content, titularity and its constitutional and subconstitutional limits, the other one establishes it as cultural good of the Social Order, defining to the State its rendering duties of protection, formation and cultural promotion. We do not admit artistic communication, granted without legal reserve, to be transposed of restrictions that belong to other fundamental rights and, when its exercise collides with another fundamental right or juridical-constitutional good, the justification to a possible state intervention that tangentiates its protection area goes, necessarily, through the perquisition of the artist s animus, the used method, the many viable interpretations and, at last, the correct application of the proportionality criteria. The cultural public politics analysis, nevertheless, observes the pluralism principle of democratic substratum, developer of the cultural dialogue and opposed to patterns determined by the mass cultural industry. All powers are attached, on the scope of its typical attributions, to materialise public politics that have the cultural artistic good as its aim, due to the constant rule contained in §1, art. 5º of the Federal Constitution. However, the access and the incentive laws to culture must be constantly supervised by the constitutional parameter of fundamental right to equality

O direito coletivo prestacional à saúde e o poder judiciário: a concretização do art. 196 da Constituição de 1988 pela via jurisdicional

During the ninth century, owing to the process of industrialization, new social conflicts were showed, forcing the Government not to remain inert. The necessity of answer to these new demands requires from the State some actions that assure the new economic, cultural and social rights, able to exceed the formal equality, according to the principles of redistributive equality and well-being. Among the social rights, the right to health is showed up, which is placed at the Universal Declaration of Human Rights and the International Treaty for the Economic, Social and Cultural Rights, as a necessary term to promote the dignity and the free development of the human personality. Under the Constitutional Law, it is clear that the implementation of the right to health, placed at the 6th article of the Brazilian Constitution, demands a government activity, which usually requires a provision of material goods, depending on budgetary resources. The Legislative and Executive Branches have a very important role in compliance with the constitutional regulations about the satisfactory offer of health care services, besides the correct use of the resources at this area. The adoption of public policies is the way of Government action to the planning and realization of this right. Though, some public policies are usually made apart from the social compromises, to the detriment of the basic social rights. The government has a discretionary competence to manage the health services. That is the reason it is necessary the control of the political choices, through the popular control, the extrajudicial control by the Account Courts, or the judicial review. Owed to the constitutionalization of social rights, the constitutional justice has a very relevant role, concerning to the constitutional jurisdiction, in a way the Judiciary Branch assume your position as a player that transforms the society. On the control of the public health policies, there is a cast of official instruments, judicial or not, to the guarantee of the collective right to the public health services, and to allow the citizens to reach the real implementation of the right to health

As relações entre o público e o privado no processo de expansão do ensino superior no Brasil: democratização ou mercantilização?

The present study analyzes the expansion of Brazilian superior education, investigating how the public and the private sectors are inserted in this process, taking as analysis dimensions the philanthropic actions, the democratization and the mercantilism. The study had for general objective to analyze the dynamics of the expansion of superior education in Brazil, investigating how it configures the overlap between the public and the private in this process. More specifically was tried: a) to understand the process of participation of the non-state public, state and private sectors with lucrative goals in the expansion of superior education; b) to analyze the limits between the democratization and mercantilism in the process of expansion of superior education; c) to analyze the mechanisms that express the privatization in the process of expansion of superior education; d) to investigate, in a program of the government, how is materialized the overlap between the public and the private, in the expansion of superior education. In the development of the study, was adopted as theoretician and methodological way a historical and critical perspective, because is considered it allows to understand the mediations between the inquiry subject and the historical context in which it is developed, allowing, this way, the true explanation of the studied object. About the technician procedures, it was adopted documentary and bibliographical research. Also, secondary data were searched on the main governmental web sites (INEP, SISPROUNI, INEP, PNUD; IBGE) which produce statistics on superior education and sponsors of private institutions of superior education, as example ABMES and the Court of Accounts of the Union, amongst others. The study results had delineated a picture that allows to evidence that has been occurring, in the country, a process of expansion of superior education, marked for the articulated participation of the public state, private with lucrative ends and private without lucrative ends sectors, but it is distinguished in recent years the prevalence of the private sector with lucrative ends. In result, it is concluded that this process of expansion cannot be considered as dimension of the democratization because it occurs by means that move it away from the education as a right to be placed in the scope of the market, changing the right into a service that is appropriated by mercantile relations