Categorie fondamentali del diritto penale e “scelte tragiche” automatizzate. Spunti per un dialogo tra diritto penale ed etica

This paper examines the complex relationship between morality and criminal law, highlighting how their interaction becomes most apparent in situations of conflict. While modern criminal law has shifted from repressing intrinsically immoral conduct (malum in se) to prohibiting conduct wrongful primarily because it violates positive law (malum prohibitum), moral considerations remain embedded in fundamental categories such as imputability, culpability, and defenses. The emergence of artificial intelligence and the development of “artificial moral agents” have renewed scholarly interest in the moral assumptions underlying criminal liability. The paper argues that, although criminal law cannot entirely exclude moral dimensions, it also cannot resolve ethical dilemmas through general legal rules or delegate this function to AI systems. It therefore analyzes two models of interaction between morality and criminal law: (1) a relationship of identification, in which moral criteria inform the determination of applicable legal norms; and (2) a relationship of justification, in which moral conflict may, within certain boundaries, justify the non-application of criminal prohibitions.