Análise sobre a validade do princípio da afetividade no ordenamento jurídico brasileiro

Abstract

This research approaches the validity of the principle of affectivity in the Brazilian legal system. As an expression of the consecrated values deriving from the neoconstitutionalism, we constantly use principles as the foundation of rights. The use of principles in the legal system is studied first. Even when there are rules for a given case, a principle for them is looked for. There are also “implicit” or derivative principles that arise from a prior one, often created as an argument for subjectivist decisions. This is how the principle of the dignity of the human person was approached, as well as the various foundations that followed from it. The purpose of a principle and the influence of constitutional hermeneutics on its application is something constant. This principled scenario shows there is room for the principle of affectivity. Given this, affectivity is studied from two perspectives, in the anthropological and in the legal senses. First, the anthropological sense of affection concerns the concepts of desires and impulses, emotions and feelings. In the anthropological sense we also approach the education of affection and the excesses that result from its inadequacy. In the second perspective, affectivity is studied in the legal sense. This idea is based on the approaches of affectivity in the Brazilian jurisprudence, among which stands out the homosexual union, the allegation of moral damage in emotional abandonment, multiparenting, and the concept of family. In contrast, we sought to highlight situations in which the configuration of affection is unnecessary for the fulfilment of legal obligations, such as maintenance obligation, adoption, marital impediment and moral damage. Therefore, to investigate the framing of affectivity as a norm, we have also studied the concept of legal norm. We have also analysed the concept of principle to approach the possibility of convenience with affectivity. It follows from this that the norm is essentially to regulate external conduct, which makes it incompatible with the consideration of inner aspects of the subject. We have also observed that a principle can be compatible with affectivity however, that consideration reproduces a legal uncertainty in ordering due to the instability of affections.