NON-IMPUTABILITY AND CRIMINAL LAW OF THE ENEMY: THE CONVENIENT CLASSIFICATION OF THE INSANE
Abstract
Based on the analysis of the theory of Criminal Law of the Enemy and the studies of Foucault concerning madness, this article tries to explain the apparent incompability between the treatment given by Law to those who carry mental disorder and commit “penal unfairness” and the current trend of non-institutionalization, present in the Law of Psychiatric Reform. Considering Foucault’s work, it is proposed to treat the influence of moral issues in the formation of the insane image and the hard confluence between Medicine and Law, fact that prevents the most suitable treatment for those people. Besides that, it tries to demonstrate the importance and the incompatibility of the issue in relation to the criminal dogmatic, aiming at getting enough substract to answer the questioning whether maintaining or not the treatment of those who carry mental disorder in Criminal Law.
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