La responsabilità penale per colpa incosciente (negligence): vantaggi e svantaggi in una prospettiva politico-criminale

The paper is divided into two parts. The first part deals with the pluses of the criminal law as a response to negligence: the question whether the negligence can be considered as mens rea, that is the topic of a classic dispute in the Anglo-American philosophy of law, is explored in the light of the acquisitions of Freudian psychoanalysis; also in the view of the criminological individualistic-psychogenic address, one wonders if the negligence is to be considered always less serious than the recklessness; from the question of the legitimacy and opportunity to punish the negligence the paper switches to the question of how to punish, mainly through sanctions like the interdiction; the pluses of the criminal law protection from the point of view of the guarantees, in comparison with the "weaker" notions of negligence (res ipsa loquitur) and causality own of the civil law, are afterwards analyzed. The second part deals with the minuses of the criminal responsibility for negligence: the cost-benefit ratio of the prosecution is explored in the typically utilitarian view of the economic analysis of law, in the light of the needs of the victim and of the characteristic social stigma of the criminal sanction; the paper then deals with the problem of the "fatal" and "anonymous" damages of the modern society; and finally analyzes the traditional criticism of the randomness of the responsibility for negligence (Zufallsargument).