The Protection of the Civil Rights of Person from the perspective of the Law and Economics

Abstract

This paper analyzes the protection of personality rights from the standpoint of the law and economics. Thus, firstly, it differentiates between indemnifying, authorizing, caducifying or invalidating illicit acts. Next, we analyze preventive and repressive injunctions, since the protection of personality rights, from the perspective of the law and economics, adopts a concept of instrumental precaution. In fact, injunctions and injunctive relief are intended to encourage the adoption of optimal levels of precaution in order to avoid injury to personality rights. Once the injury has occurred, we move on to indemnity protection, aiming to compensate moral damages. In this scenario, the definition of guilt will occur through the use of Hand's formula, which is based on the cost-benefit analysis of the offender's conduct. Finally, a biphasic criterion is adopted to quantify the amount of compensation for moral damage, in order to avoid derisory or exorbitant compensation. Thus, in the first phase, a basic compensation amount is established based on precedents. In the second phase, this basic amount may be increased or reduced, according to the circumstances of the harmful event. In this way, the offender will internalize the negative externality arising from his conduct, in a reasonable and proportional manner.