Between Criminal Law And Neuroscience

Culpability In The New Frontiers Of The Study Of The Brain And Its Mechanisms (and Pathologies)

Abstract

Recent research in the field of neuroscience has revealed profound dynamics in the processes underlying the will, consciousness, and awareness of human action. These processes –until the middle of the last century described according to ‘empirical logic’– today show profoundly more complex realities. The same cardinal principle of a person’s imputability underlies the concept of ‘capacity to understand and to want’, a capacity that the legal systems initially consider as ‘assumed’ but which must, at the trial, be ‘demonstrated in concrete terms’: in concrete terms at the moment of the fact and in concrete terms in the person accused. This contribution, far from wishing to be conclusive, wants to act as a ‘bridge’ between disciplines that are very distant from each other, but which often meet in the courtrooms, where however it has often happened that the purpose of the interventions (mainly by doctors, neurologists, psychologists, psychiatrists) was finalistic: far from being explanatory of the phenomenon, the doctor was required to substitute himself almost in the function of judging guilt. A role that not only goes beyond the medical competence per se but also places on the doctor a responsibility far removed from his own function, and from his vocation: to take care of the person’s wellbeing, which often passes through the scientific omission of judgements (for which, moreover, the doctor in criminal proceedings also lacks specialist training and technical language).