Emoções e direito: o papel das emoções na prática jurídica

Abstract

The main objective of this work is to characterize the still little debated, especially in Brazil, role of emotions in the legal universe. Starting from the analysis of the influence of legal positivism in the suppression of emotions in the science of law, relevant particularities in the legal system will be highlighted that show how emotions and affections can contribute to a more complex and concrete image of legal thought and practice. In this sense, it explores, firstly, the theoretical and historical framework of legal positivism, showing how this movement impacted and still impacts in terms of the suppression of emotions in law, also bringing aspects related to emotional elements. Secondly, the relevance of emotions in the structure of the legal system is verified, particularly with regard to decision-making processes in the jurisdictional environment, developing a focus on the current elaborated by Martha Nussbaum, which deal with the need for the presence of emotion of mercy in processing the fairest decision, some of these aspects allied to legislation are also addressed, also bringing Nussbaum's perspective, relating the disgust and shame that can be felt in this process. The third section is examined, Terry Maroney's approach, which deals with the different directions that can be given to emotions in Law, whose main objective is to facilitate the legal operator in understanding the phenomena related to the interconnection of Law and emotions. Finally, the objective of the last division of labor is related to exposing the presence of emotions in the scope of Civil Law, Civil Procedure and work, giving a greater focus to Criminal Law.