Nuevo Foro Penal (Oct 2015)
Neurociencias y derecho penal desde una perspectiva funcional de la mente
Abstract
On the matter of the discussion about the reach of the conclusions to which some neuroscientists have arrived after conducting relatively recent experiments regarding subjects that, like the possibility of individual freedom, are crucial to the legitimacy of any system that pursues the attribution of responsibility, jurists often find themselves trying to determine whether the Law –and, in particular, the Criminal Law- has been removed of the bases to found a punitive judgment. In the pursue of this task, they often move following the sway of the achievements of the “hard sciences” without ever stopping to consider the philosophical background that gives meaning and context to the discussion. The truth is that concepts such as will, consciousness and freedom depend, without a doubt, on how one understands the relationship between mind and body: to some, they are the same; to others, they are so different that the discoveries about the operation of the one does not affect the properties of the other. The Philosophy of the Mind starts with this reality and suggest tools that promise to be very useful in order to move forward on the discussion. This paper reviews the actual state of the matter, evaluates it based on the tools that the Philosophy of the Mind offers and thus proposes a “compatibilistic” alternative integrating the achievements of neuroscience to the criminal law system, adequately situating them and defining their reach. Above all, this paper is an invitation that intents to awake the interest of the main actors of the debate about a subject that has been traditionally underestimated, but that turns out to be crucial in order to resolve the deterministic affair.
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