A intuição do dolo em direito penal: correlatos neurais da teoria da mente, raciocínio indutivo e a garantia da convicção justificada

Abstract

This article takes relevant evidences from contemporary cognitive sciences – especially behavioural and fMRI studies – to understand the argumentative elaboration of criminal intent (dolo) and the selectivity of criminal policy, politically and morally focused on the psychological and individual level. Both the psychological elements, which underlie conceptualization and classification of intentional crimes, and the biases that affect the judgment of subjective elements adscription are issued with an empirical and interdisciplinary approach. So it is possible to explore the natural and spontaneous association of legal institutes, criminal especially, and some readily available moral conceptions; also the limits of efficacy of some traditional cognitive guarantees within the criminal process. The employed methodology was mainly bibliographical review, both on neuroscience, mainly, on neural correlates of Theory of Mind, and behavioural psychology, with emphasis on intervenient factors on attribution of knowledge, will and intention (mental states) to agents, and its relationship with the social (normative) meaning of his action. Some asymmetries on actions evaluations were identified, in a way that signalizes other factors beyond the agent’s mental states (knowledge and will) to play an important role on their moral status – actually, those same states may play a role not as premises on moral judgement, but to further justify some initial intuitive reprobation. A psychological base for conditional intent (dolo eventual) was also identified, according to the neural processing of negative side effects of some actions. Furthermore, there is a noticeable effect of the agent’s previous record on the evaluation of blame, intentionality and of the causal contribution of his action to the verified result. Finally, the interpretation of an action as intentional may vary depending on its occurrence along with a harmful event, or its being only a violation of social norm. These results are important to criminal law, especially to guide the never-ending efforts to make its guarantees effective.