The founding myth of Brazilian Competition Law: a critical reconstruction of Benjamin Shieber and his work

Abstract

Background: the article starts from the observation that Brazilian Competition Law lacks a solid and coherent historical narrative, often oscillating between fragmented references to constitutional provisions, scattered legislation, and foreign influences. Within this scenario, Benjamin M. Shieber’s Abusos do Poder Econômico (1966) became one of the field’s “founding myths,” although its author remains an enigmatic and scarcely documented figure.

Objective: the study seeks to reconstruct Benjamin M. Shieber’s trajectory, understand the circumstances surrounding the drafting and publication of Abusos do Poder Econômico, and assess the role of his work as a founding myth of Brazilian Competition Law. The aim is to move Shieber from the realm of “urban legend” and analyze how his reflections shaped, to a greater or lesser extent, the national antitrust doctrine and practice.

Method: to achieve these objectives, the research adopts a multifaceted approach: it critically reviews Brazilian legal literature on competition, examines legislation and the early jurisprudence of Cade, consults press records of the period through the National Library’s Digital Newspaper Archive, and, in a unique step, establishes direct contact with Benjamin M. Shieber himself, who provided valuable personal and historical information. The analysis also considers the acknowledgments and collaborations cited in his work, which help reconstruct the context of its production.

Conclusions: the study concludes that Abusos do Poder Econômico exerted an influence disproportionate to the little that was known about its author, consolidating foundational interpretations of Brazilian antitrust law, such as the notion of “relevant market” and the application of the “rule of reason.” However, it also reveals that Shieber was not a competition law specialist but rather a young labor law professor attracted by the Brazilian context of the 1960s, who wrote his work in Portuguese with the assistance of local colleagues. This historical reconstruction helps demystify certain narratives repeated in legal scholarship, highlights the enduring influence of U.S. law, and, at the same time, underscores the autonomy of Brazilian law in developing solutions tailored to its own economic challenges.