Neurolaw is the approach that attempts to apply recent progress in neuroscienceto the classical conceptions of law, often with the aim of pushinglegal institutions (especially in criminal law) to be more in line with scientificknowledge. It is essentially a process of naturalization of the law,which also applies to punishment, its aims, its methods of implementationand its justification.A relevant line of naturalization of criminal law relies on developments inneuroscience so as to try to prove that (if not always, at least most times) ouractions are not free according to the classic definition of freedom – wherethe agent is capable of knowingly, voluntarily and consciously undertakinga course of action by choosing between alternatives. According to the proponentsof this view, one cannot but follow the logical sequence deriving fromthe experimental data, which leads to the unavoidable pragmatic conclusionof choosing a consequentialistic kind of law and punishment.Consequentialist punishment is deemed to be more humane because it isnot afflictive and is only targeted to protect society. But the fact that thecharged person is regarded as more mad than bad, so to speak, turns her intoa sort of “broken machine”, with the risk of legitimizing preventive treatmentsor ones of indefinite duration. The objections to this approach are thereforerelated to the gaps of knowledge we still have, to the risks of “political”Neurolaw and Punishment 97abuse, and to the Strawsonian line of thought for which we cannot treat ourfellow human beings as broken machines to be repaired, depriving them oftheir nature of free and rational agents (except in exceptional and rare cases).I suggest a more nuanced assessment of these possible developments anddefend a moderate form of retributivism.
Neurolaw and Punishment: a Naturalistic and Humanitarian View, and its Overlooked Perils
LAVAZZA A
2017-01-01
Abstract
Neurolaw is the approach that attempts to apply recent progress in neuroscienceto the classical conceptions of law, often with the aim of pushinglegal institutions (especially in criminal law) to be more in line with scientificknowledge. It is essentially a process of naturalization of the law,which also applies to punishment, its aims, its methods of implementationand its justification.A relevant line of naturalization of criminal law relies on developments inneuroscience so as to try to prove that (if not always, at least most times) ouractions are not free according to the classic definition of freedom – wherethe agent is capable of knowingly, voluntarily and consciously undertakinga course of action by choosing between alternatives. According to the proponentsof this view, one cannot but follow the logical sequence deriving fromthe experimental data, which leads to the unavoidable pragmatic conclusionof choosing a consequentialistic kind of law and punishment.Consequentialist punishment is deemed to be more humane because it isnot afflictive and is only targeted to protect society. But the fact that thecharged person is regarded as more mad than bad, so to speak, turns her intoa sort of “broken machine”, with the risk of legitimizing preventive treatmentsor ones of indefinite duration. The objections to this approach are thereforerelated to the gaps of knowledge we still have, to the risks of “political”Neurolaw and Punishment 97abuse, and to the Strawsonian line of thought for which we cannot treat ourfellow human beings as broken machines to be repaired, depriving them oftheir nature of free and rational agents (except in exceptional and rare cases).I suggest a more nuanced assessment of these possible developments anddefend a moderate form of retributivism.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
