ESISTE IL PATERNALISMO PENALE? UN CONTRIBUTO AL DIBATTITO SUI PRINCIPI DI CRIMINALIZZAZIONE

The compatibility between so-called penal paternalism and liberalism has been long discussed. The aim of this article is to show that p. p. does not actually represent an autonomous principle of criminalization. First of all, after having made a distinction between tutelary and despotic p., it is argued that the first one is nothing but a specific manifestation of the harm principle. As to the second, it is argued that struggling with it is a kind of shadow-boxing: criminal norms usually seen as tokens of it are instead expressions either of legal moralism (and should be dealt with as such) or (as is for tutelary paternalism) of the harm principle. In these last cases, the problem is that the harm principle itself is a far less stable ground for criminalization than antipaternalists seem to believe. Moreover, the article provides a critical account of the antipaternalists’ view on consent. The conclusion is thereby drawn that what in fact the debate on p. p. calls for is a thorough discussion of whether individuals have a ‘right to do wrong’ (even when this ‘wrong’ consists in self harming).