Economic Analysis of Law and the Quantification of Compensation for Moral Damage: Pedagogical Character or Incentive to Damage?

Abstract

This article sought to analyze the current quantification of compensation for moral damage, using the Economic Analysis of Law (EAL) as a method, in order to verify whether the consequences of judicial decisions, with regard to the quantification of compensation, are in line with the pedagogical nature of reparation, in the sense of avoiding damage, since the significant costs can make the possible offender dedicate himself to preventive measures, or whether they are actually serving as an incentive to the realization of the damage or to discourage its occurrence, given the low compensation. To this end, the context and limitations of EDA and the very applicability of the economic analysis of law in civil liability were addressed, dealing with the attributes and objectives of civil liability and the impacts of the decision regarding civil liability on the frequency of accidents and the cost of prevention. Subsequently, the context of moral damage and the criteria for quantifying it were addressed, and the studies were concluded with a survey of judgments that made it possible to gauge the average compensation. The work used a qualitative approach, which was guided by the inductive method and made use of documentary and bibliographical research techniques.