Why The Punishment’s Retributive Component is Absurd: Jurists Facing Neuroscience

Abstract

The present paper argues that the Ego and the Unconscious are metaphors engaged in a continuous interaction: the Ego is not stable but constantly reshaped by unconscious contents emerging into consciousness, while the Unconscious absorbs what falls out of consciousness. Personal identity is therefore a dynamic and illusory construction. The author criticises the juristic concept of the person developed between the 17^th and 18^th centuries by thinkers such as Descartes and Locke, claiming it rests on naïf psychology. The apparent continuity of the Ego derives from autobiographical memory, which is fragmentary and artificially reconstructed. The Ego is thus likened to a thread linking isolated pearls of memory. This perspective has major implications for law. Legal systems assume a stable, responsible subject endowed with consciousness and free will, yet neuroscience suggests that decisions arise unconsciously before they are experienced as voluntary. Conscious will is therefore an illusion created through backdating, while the Unconscious determines action. As a result, key juridical notions such as criminal responsibility, capacity to understand and to will, and personal accountability appear scientifically weak. Even judicial decision-making is not truly free but shaped by unconscious processes. In conclusion, the retributive aspect of punishment lacks rational foundation: it is illogical to punish the Ego if actions originate in the Unconscious. According to this paradigm, law focuses on prevention and education only, and jurists should be trained with knowledge of neuroscience in order to bridge the gap between legal practice and scientific understanding.Inizio modulo