A alma e o castigo

reflexões sobre o estatuto das emoções no Direito Penal

Abstract

The authors seek to rehabilitate the category of emotion within modern criminal discourse. To this end, they first examine the supposed dichotomy between emotion (pathos) and reason (ethos) through artistic, literary and philosophical references, paying particular attention to the much-depicted biblical scene of Solomon’s judgement. A first observation is that emotion is relegated to a secondary position in the moral architecture of Modernity, whilst at the same time the Law comes to be seen as an instrument for civilising natural man, a vehicle through which universal reason can override particular emotions. In a second step, the authors examine the unusual case study of Kaspar Hauser, through which its author, P. J. A. Feuerbach, sought to establish emotions as an autonomous ground for criminal liability. The diagnosis is that there is a tension between classical-liberal criminal discourse and so-called “emotional criminal law”, a tension that is only apparently insoluble. As a viable solution, the authors propose finally a constructivist and non-psychologising conception of emotion as a possible guide for further discussion.