July 11, 2022

Law, Justice, and Citizenship in the Twenty First Century

The present work is focused on and developed upon the problems caused by the legal system of excess in self-defense, as designated in the Portuguese Penal Code: "The agent is not punished if the excess results from perturbation, fear or shock that are not blameworthy. », in a formulation and conception very close to that of the German Criminal Law.

The figure of excess in legitimate defence has always been, dogmatically, in the shadow of the matrix-based institute of self-defence, having been obfuscated by it in academic research and debate on self-defense. On the other hand, in terms of causes and excuse or exculpation, prominence has been given to the [defence of] necessity. However, from the point of view of both penal law and penal philosophy, the excess of legitimate defence has an immense richness and a complexity that dignify it as an important dogmatic figure that require that the doctrine and the philosophy of Penal Law, but not only, dedicate a lot more attention to it. This work intends to contribute to this end.

The problematic and discursive frame of the thesis is Penal Law, but with some crossings with other areas of knowledge, philosophy, sociology, history, semiology, psychology, etc. Though it is primarily underpinned by the continental penal doctrine, mainly developed by Portuguese legal scholars, it also draws from Anglo-American sources that provide essential contributions, especially in moral philosophy and ordinary language philosophy.

This thesis is interwoven around three critical themes of the penal regime of excess: the sentence (why punish the excess), the culpability/excuse, and the emotions. Instead of the classical dichotomy of reason/will, the penal-judicial regime of excess brings the triad reason/will/emotions. The emotions are, in this work, aligned with a more cognitive comprehension. The traditional solution, almost consensual among countries with German doctrinal influence, such as Portugal, of the dogmatic treatment of excess in self-defence based on the esthenic - asthenic affection dichotomy, is rejected. The foundation of the non-punishment of excess is the lack of culpability of the will and not the reasons, though present, of unnecessity of prevention, nor mere the indulgence of the legislator and the judge allied to a concrete diminished guilt. The culpability in excess, or its absence or reduction, is faced as normative culpability, but of fundamental ethical morality and less psychologist.

The work dedicates an important space defending the freedom of the will as a presupposition of culpability, in contrast to certain contemporary determinist tendencies nurtured, above all, by important positions taken by authors in the field of neurosciences. Here, said freedom is defended as a necessary presupposition for the attribution of responsibility to the agent, in the present context of the crisis of penal law of culpability, above all in continental criminal law.

Prominence is given to the normative theory of culpability, seeking, in response to the critiques, to demonstrate its suitability as a penal-legal principle and its versatility as a reference for an individualized and respectful application of the plural contexts of a global and diverse society.

Criminal Law, as well as its expression in the regime of excess, is seen from a neo-retributive perspective, of an onto-anthropologic reason (in line with Faria Costa), densified and legitimized by an ethics of inter-subjectivity or alterity, whether an ethics with a philosophical root (as in Ricoeur), or a communicative ethics. After all, as many have been defending for a long time, punishment is given, fundamentally, because one is guilty of a crime, although preventative ends are also recognized.

Keywords: Excess in self-defence, punishment, retribution, free will, responsibility, culpability and emotions, culpability and cultural diversity, excuse