O livre-arbítrio no Direito Penal: Investigações sobre a culpabilidade e a responsabilização na filosofia de Nietzsche e nas neurociências

Abstract

This thesis presents a transdisciplinary study that brings together multiple theories, arguments and empirical data about the element of free will. The research cut is especially carried out in the face of the theory of culpability installed in Brazilian Criminal Law from the influence of European law that has developed since the colonization process. The work follows a historical-descriptive methodology, raising the state of the art of Criminal Law and theories related to criminology to then present, through an analytical review, some notions of cognitive psychology and empirical results of neurosciences. At the philosophical level, the philosophy of Friedrich Nietzsche (1844-1900) is used, notably his genealogy and his perspectivism. In this way, it brings information about the historical construction of the concept of culpability from the beginnings of Criminal Law to the advent of the functionalist doctrine, at the end of the first half of the 20th century, focusing on the consecration of the conceptions of culpability of foundational bases of the idea of free will to the most contemporary perspectives, especially those that are critical of the idea of “being able to act differently”, analyzing the idea of responsibility that underpins the theory of culpability, in order to, from the nietzschean perspectivism and with the application of the genealogical method, to analyze accountability under its utilitarian character. In this way, it addresses the normative contours given by traditional models of attribution of responsibility and presents a critique of the construction of the idea of free will absorbed by Criminal Law based on its constitution from the focus of the Christian heritage, with deep notes about secularism of the State defended by the Brazilian Federal Constitution, to point out that a review of the concept of freedom within the theory of culpability must necessarily go through a decolonization of legal thought and a de-Christianization of the concept of free will, which is done by the handling of nietzschean philosophy. Therefore, it addresses issues such as conscience, free will, freedom and responsibility from Friedrich Nietzsche. In the end, it raises some neuroscientific findings that contribute to the criticism of the idea of freedom of the will, from a possible "neurodeterminism" and the possible legal-penal repercussions, and also, the segment of a neuroethics that questions the complexity of the relationship between the physiological assumptions of the brain and the complex range of propositions that effectively make up the trace of accountability and its relationship to culture for the moral aspects of personal decisions, passing through the experimental turn, which challenges traditional models of attribution of responsibility with new evidence about of the great influx of intuitive-affective biological processes that would even precede the determination of the causal nexus and the mental states of the agent to be judged. All this presenting the plausible similarities with nietzschean philosophy to prove the arguments that it is possible to think of Nietzsche as a precursor of coherent movements that am in the legal-criminal dogmatism still present. As a way of making the justified contradiction compatible, it presents Luigi Ferrajoli's garantism under a proposal of a humanist necessitarianism.