O direito ao sossego: uma alternativa ao falso bem jurídico “sentimento”

Abstract

In this article we seek to substantiate the recognition of calmness as a legal good that can be criminally protected in a liberal state. Based on the idea that feelings cannot be considered legal goods, we develop an alternative for the criminalization of conduct such as threats (art. 147 of the Brazilian Criminal Code), based on the ability of these acts to prevent the victim from deciding how to allocate their attention. We argue that the argument that threats are criminalized because they cause a restriction on freedom is excessively empirical and does not encompass situations such as simple threats. In this way, we feel that the reference of calmness is more appropriate to justify criminalization. Finally, we have shown that the verification of harm to this legal asset is conditioned by the binomial expectation of calmness and the intensity of the aggression. Behaviors that affect victims in certain places and at times when there is a greater expectation of calmness have a higher degree of harmfulness than those that affect them in places where attention is expected to be interrupted. Similarly, repetitive or prolonged behaviors affects the ability to allocate attention more intensely than mere occasional harassment.