RESP 1.159.242 – SP: THE NEED FOR A SPACE OF "NON-LAW" IN THE LIQUID MODERNITY

Authors

  • Carolina Diamantino Esser Pontifical Catholic University of Minas Gerais, PUC-MG
  • Iana Soares de Oliveira Penna Pontifical Catholic University of Minas Gerais, PUC-MG

DOI:

https://doi.org/10.5380/rfdufpr.v59i3.36070

Keywords:

Affection. Civil Responsibility. Liquid modernity. REsp 1.159.242 – SP.

Abstract

This paper critically analyses the decision of the Brazilian Superior Court of Justice (STJ) under the Special Appeal (REsp) 1.159.242 – SP, in which a father was ordered to pay R$ 200,000.00 (two hundred thousand reais – about US$106,000.00 at the time of the trial) to his daughter, because of emotional abandonment. The trial, held in April 2012, raised discussion on the legal nature of the affection in the Brazilian legal system; the way the matter was treated by that court is subject of criticism regarding several aspects (doctrinal, jurisprudential and sociological). Under the doctrinal aspect, there is the understanding that the nature of the affection does not admit its treatment as a worthy legal principle of indemnity. Also, the Courts of Justice of São Paulo and Minas Gerais, in their turn, are not following the STJ after the decision under discussion, on the grounds that in such cases there is no tort giving rise to the duty to indemnify. From a critical sociological perspective, one may question the decision of the STJ based on the theory developed by Bauman, under which we operate in the so-called “liquid modernity”, at which human relationships and feelings have been reduced to money and consumption. From the presented arguments we conclude there is a need for a space in which the intervention of the law is not feasible, due to the impossibility of solution of conflicts and the need of autonomy preservation. This space is called by Rodotà as “space of non-law”.

Author Biographies

Carolina Diamantino Esser, Pontifical Catholic University of Minas Gerais, PUC-MG

Graduada em Direito pela Faculdade de Direito Milton Campos. Mestranda em Teoria de Direito pela PUC MG.

Iana Soares de Oliveira Penna, Pontifical Catholic University of Minas Gerais, PUC-MG

Graduada em Direito pela PUC MG. Mestre em Direito pela PUC RJ. Doutoranda em Direito pela PUC MG. Bolsista da Capes.

Downloads

Published

2014-08-09

How to Cite

Esser, C. D., & Penna, I. S. de O. (2014). RESP 1.159.242 – SP: THE NEED FOR A SPACE OF "NON-LAW" IN THE LIQUID MODERNITY. Revista Da Faculdade De Direito UFPR, 59(3), 109–131. https://doi.org/10.5380/rfdufpr.v59i3.36070

Issue

Vol. 59 No. 3 (2014)

Section

Artigos

License

Authors who publish in the Journal agree to the following terms:
– Authors retain copyright and grant the Journal the right of first publication, with the work licensed under the Attribution-NonCommercial-ShareAlike 4.0 International licence, allowing the work to be shared as long as proper credit is given to the authors and the initial publication in the Journal is acknowledged;
– Reusers must provide appropriate credit, include a link to the license, and indicate if changes were made, but not in any way that suggests the licensor endorses the reuser or their use;
– Reusers may not apply additional restrictions, legal terms, or technological measures that legally restrict others from doing anything the license permits;
– Reusers must attribute credit to the creator and allow others to distribute, remix, adapt, and build upon the material in any medium or format, exclusively for noncommercial purposes and under the same terms, in compliance with Brazilian Law No. 9,610 of February 19, 1998, and other applicable regulations.