Il rapporto con l'«altro» alla luce della Costituzione. I riflessi sulle problematiche del «fine vita» e l'«incostituzionalità» di ogni configurazione dell'«altro» come nemico

[Autom. eng. transl.] The work offers a reconstruction of the image of justice that can be deduced from articles 2 and 3 of the Constitution, considering its repercussions on some key issues of the criminal law problem: in particular, concerning the methods of protecting the fundamental legal good constituted by human life, with regard to the emerging themes of bio-juridical and in particular the relationship between doctor and patient, as well as about the unacceptability of so-called "security" uses of the criminal instruments, which arise, in the wake of what has been described as "criminal law of the enemy", in an antithetical perspective to the re-socialization orientation expressed by art. 27, paragraph 3, of the constitutional charter. The fundamental assumption of the research is constituted by the ascertainment of how the ownership of inviolable rights does not depend, in the constitutional framework, on the judgment on the existential conditions or on the abilities of a specific individual, but exclusively on its existence in life. Therefore, acting according to justice is not to be found in operating in terms of reciprocity with respect to such a judgment, but in constructing, even in problematic situations, intervention criteria conforming to the dignity of all the subjects who are recipients of the same. Respect for every living individual therefore assumes, in the legal system, the role of safeguarding the principle of equality, manifesting itself as an essential requirement of the democratic order. On this basis, the contribution starts from the identification of the characters that configure the existence of a human life, addressing, in particular, the issues that are debated with regard to the recognition of its beginning and its end, in relation to the relevant consequences for the right. That said, the problem of the legal role that the patient's consent in medical activity is examined in depth, both with regard to the activation of therapies and to the interruption of the same and to the relief of the so-called advance treatment declarations (also with a specific consideration of the problem related to the so-called vegetative states). In particular, the non-contractual nature of the health relationship is analyzed, as well as the role and contents of the concept of proportionality of the therapies. From the point of view of the penal sanction system, the close link between the notion of justice mentioned above and the re-educational orientation assigned by the Constitution to the penalty is highlighted. Orientation that, in these terms, does not represent a mere openness to humanitarian needs, but rather as a real political-criminal strategy. In fact, a "positive" general and special prevention model is privileged, which aims to maintain high levels of adherence in society through personal choice and respect for regulatory precepts and enhances, in this sense, strategies of empowerment and social reintegration of the condemned . A model, therefore, based on "consensus", rather than on intimidating and neutralizing dynamics widely available to the definitive social marginalization of recipients of criminal convictions and, at the same time, not very sensitive to that social co-responsibility towards multiple factors that favor crime, the whose recognition is essential to implement serious primary prevention strategies. From such an awareness consequences are derived not only for the reform of the penal sanction system, but also for the construction of the incriminating cases. Concluding, and in relation to both the problematic nucleuses faced, a reflection is proposed worried about the tendencies to the so-called "flexibility" of the same inviolable rights and, in particular, of the right to life and the right to the respect of the human dignity: therefore, to the "bilanciabilità