Principio del danno e legittimazione "personalistica" della tutela penale

In a discussion of the landmark study by Joel Feinberg on the harm principle, the essay proposes an overall framework for late-modern criminal punishment, with particular reference to the development of its "personalist" feature (in the light of the Constitution) . In this context, it develops a critical analysis of some political philosophy theories, as consequentialism and utilitarianism, in which, like the liberal principle of self-protection, it identifies a fundamental “information constraint”, namely the definition by the same regulatory system of the point from which people might consider themselves arbiters to decide what is good and right for them, and, from then on, the criminal law should be confined to protecting the basic "security" of citizens against possible damage, being debarred from any form of paternalism . Contrary to these views the essay will support a definition of the sphere of intervention of criminal law based on an extended notion of harm, such as also encompassing the impediment to informed choice, that is an adequately informed and "capable" one. Furthermore, it proposes a configuration of the ultima ratio principle (a basic regulatory principle for criminal law) that postulates a giving up of the criminal punishment not only when the personal “rebuke” that it expresses is not strictly necessary for the protection of legal assets, but even when the social disapproval inherent in criminal liability and sanction does not show any reasonable ability to foster, in perspective, informed choices, "capable" and therefor