Translated from the Portuguese original published by the Federal District Board of Medicine (CRM-DF) on 12 July 2019, when I served as a board member: A Deformação Corporal e sua Valoração. In 2024 I became a chapter reviewer of the Brazilian Body Damage Assessment Table, the national reference that replaced the DPVAT tables discussed below. The question this essay raises has not gone away.
1. In antiquity it was believed that any harm could be compensated, even with the pain of the one who caused it. There was, in other words, an equivalence between harm and pain. In this context the idea of punishment arises within the relationship between creditor and debtor: should the debtor fail to keep a promise, the creditor could inflict harm on the debtor’s body as a form of repayment.
The debtor, in order to inspire confidence in his promise of repayment, to guarantee the seriousness and sanctity of his promise, to impress repayment on his conscience as a duty and obligation, pledges to the creditor by contract, in case he does not pay, something he still “possesses,” something over which he still has power: his body, his wife, his freedom, or even his life (or, in certain religious circumstances, his blessedness, the salvation of his soul, and finally even his peace in the grave: so it was in Egypt, where the debtor’s corpse found no rest from the creditor even in the tomb, though for the Egyptians that rest was something special). Above all, the creditor could inflict on the debtor’s body every kind of humiliation and torture, for instance cutting off as much as seemed proportionate to the size of the debt, and on this basis, very early and everywhere, there were precise assessments, terrible in their minuteness, legal assessments of limbs and parts of the body.
Friedrich Nietzsche, On the Genealogy of Morality, 1887
2. From that understanding emerges a perverse, cruel and vengeful society, reaching the barbarity of exchanging the loss of a material good, a debt, for the loss of a child, a wife, parts of the body or even life itself, as if such equivalences existed. It goes so far as the absurdity of proposing a legal valuation of body parts commensurate with the debt.
3. In 326 BC the Lex Poetelia Papiria was introduced, abolishing the debtor’s ability to pledge his own enslavement or bodily punishment as security. Our understanding evolved toward the absence of any equivalence between bodily harm and financial value.
4. Today there is a situation for which I propose a parallel. When a third party inflicts harm on someone, for example the amputation of a finger, we consider it correct to carry out a medical-legal evaluation to quantify the percentage of harm suffered and, from it, to propose a financial value to be received. Brazil’s DPVAT table, used to pay out compulsory motor-vehicle insurance, shows clearly that we have gone back to equating bodily harm with financial advantage. This time in the opposite direction: the person first suffers the bodily harm and, as a consequence, receives financial restitution. The published table sets a ceiling of R$ 13,500 for total loss and prices everything else as a percentage of it: the loss of one eye or of hearing in both ears at fifty percent, a knee at twenty-five, a finger at ten.
5. The observations I consider pertinent are these. Are we not once again asserting that there is an equivalence between financial advantage and bodily harm? Is that equation not as perverse as the one practiced in antiquity?
6. My impression is that we have adopted a mean-spirited solution, intended to calm social tempers while we wait for a more adequate one to appear. Unfortunately, it has not appeared yet.
7. Whatever the amount received, the victim will always put the same question to the legal professionals involved: “Is that all a life is worth?” The question will never be answered satisfactorily, because the premise that sustains it, that bodily harm has a financial equivalent, is false.
8. The understanding reached in 326 BC seems to me the more adequate one: no equivalence between bodily harm and financial value is possible, and consequently questions of this nature should not be settled in the civil sphere. The answer to the question in the previous paragraph that seems most correct to me is that no sum of money can equal the value of a life, simply because these are intangible values.