Discouragement theory: a reading in the light of the brazilian legal system

Abstract

In the Brazilian Legal System, moral damage is reinterpreted by the light of the Constitution, considering the elaboration and improvement of legal mechanisms that would enable the effective protection and promotion of the Dignity of the Human Person. Therefore, personal rights are on the agenda, since, ultimately, they protect and guarantee this maximum axiom. In this scenario, discussions arise on ways to promote it, while repairing the moral damage and directing an educational and inhibitory function to the aggressor. Punitive damages, from the perspective of the theory of disincentives, therefore come into vogue, since they provide a conciliatory north of these surrounding biases, especially regarding the compensation and pedagogy sought by the Law. The methodology of this work will consist of bibliographical and jurisprudential research, through the deductive method, since it is analyzed from the general theoretical context to the particular one, in order to reach a conclusion on the subject. Thus, an analysis of social and legal evolution will be made regarding the resolution of disputes, starting with the influence of the dignity of the human person, including the theme of personality rights, and, finally, aspects of the civil liability, moral damages and punitive damages, with attention to doctrinal and jurisprudential divergences, as well as legal nuances on the subject. The subject is thorny and controversial, diverging – and a lot – the homeland legal community about its (in)applicability. Despite providing a guide, greater maturity is needed, especially with the comparison of the principles that guide contemporary civil law.