O fundamento de possibilidade crítico-determinista da imputabilidade jurídica: Schopenhauer e Kelsen

Abstract

The main objective of this thesis is to demonstrate the significant critical-determinist correlations between the thinkers Arthur Schopenhauer and Hans Kelsen regarding the discussion of the freedom of the will as the foundation of possibility (of the countermotivational/sociopsychological function) of the legal imputability. Therefore, the thesis is structured as follows: two large chapters, each one dedicated to one of the authors, and a third smaller chapter, aimed at a complementary discussion. Thus, the first chapter is intended, at first, to present a propaedeutic of Schopenhauer's thought, and, at a second moment, to examine his theory of the imputability of critical- determinist base. The second chapter is aimed at Kelsen, developing, mutatis mutandis, just like the first. In fact, it is in this second chapter, especially in the section dedicated to the presentation of the kelsenian critical-determinist theory of the imputability, that the correlations between the two authors, finally, become palpable. In turn, the third chapter is intended to outline how Schopenhauer and Kelsen, each based on their conception of justice, could offer a foundation of material validity (i.e., an ideological foundation) to the institute of the legal imputability understood in a critical-deterministic way. Finally, it should be noted that, (a) in addition to the pure and simple indication of the correlations of two authors, Schopenhauer and Kelsen, what with this doctoral research is intended to do is (b) to discuss in more detail the problem of the foundation of possibility (of the countermotivational/sociopsychological function) of the legal imputability – or, simply, the problem of the freedom of the will – and (c) highlight the critical consistency of the contribution deterministic schopenhauerian- kelsenian, insofar as (c.1) it not only challenges the free-arbitrarism, and, consequently, the retributivist ideology that tends to accompany it, but (c.2) refines the causal determinism, purifying it from the fatalistic simplicities and of the lombrosian- type ideologies, as well as convincingly articulating it with the imputative technique.