Danos póstumos e proteção à memória: contribuições para a compreensão da tutela post mortem da pessoa humana

Abstract

The present work purports to discern the basis for the protection against posthumous harms, establishing as it’s working theme the understanding and justification of the best way to view the legal protection afforded to dead persons. The research, then, investigates the limits and the philosophical-juridical explanation for posthumous protection, being justified by the lack of consensus in the specialized literature and the artificial separation between dead person’s interests and relative’s interests. Through narrative identity and the theory of the juridical situation, the hypothesis is that posthumous protection is given towards a particular juridical situation that has social relevance – composed of duties to respect memory in light of concrete circumstances – that starts with the identititarian construction of the person whilst living and moves on to his memory’s protection post mortem and the continuation of his history as told by his relatives, constituting a dimension of reception and reading of his narrative work. In the course of the research, the themes approached consisted in the presence of the dead in social and digital contexts; the appropriate view of identity that corresponds to this existing presence; the juridical view as to the present legal scenario; the adequate view of legal protection against posthumous harms as seen through the studies of memory, testimony and harms; at last, the analysis of existing scenarios of possible posthumous harms, in order to obtain a valid strategy towards discerning who should have the power to act on behalf of a dead person, as well as the period in which this could be done. The overall conclusion is that the dead person is a discursive center for ascribing rights and duties, so that a posthumous harm happens when a given fact is harmful towards that person’s biographical identity – also composed by the many biographical identities of their loved ones. This violation of a constructed narrative, associated with a social responsibility towards remembrance – via memorial duties towards the dead’s life work and the living’s rights not to be harmed as coauthors of the narrative – deserves an adequate protection to be afforded by the existing legal system so that, through the remembrance of the dead, his memorial persistence lingers on.