Il pensiero come limite del diritto

GOMETZ, GIANMARCO

2017-01-01

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Abstract

Through the concept of “harmful thought” and its comparison with the category of “preparatory action”, Frederick Schauer questions the soundness of the distinction between “thinking” and “doing” and dismantles the traditional account of freedom of thought. Yet some reasons to keep a legally relevant distinction between action and thought seem to attain to the unknowableness of the latter, related to both factual and normative reasons: we don’t have any technical means to discover directly and promptly “thoughts” independently from their manifestations, and anyway a hypothetical direct knowledge of the psyche would be the most serious violation of privacy that we can imagine, with considerable repercussions on individual autonomy. Moreover, keeping a principle of freedom of thought prevents the public authorities from imputing too arbitrarily and irresponsibly legal consequences, even punitive, to what just in a rather uncertain and indirect way can be considered “cause” of harm.