La inimputabilidad y la juridificación del encierro: una lectura foucaultiana del derecho penal contemporáneo

Abstract

The present research, from a genealogical perspective, aims to analyze the historical evolution of confinement and its incorporation into modern criminal law. To this end, we draw on the thought of Michel Foucault in order to critically analyze the traditional interpretations that attribute the emergence of the prison to the Enlightenment process of the humanization of punishments, since we consider that its consolidation also responded to economic, political, and disciplinary rationalities. Furthermore, we note, from the study of History of Madness and Discipline and Punish, that confinement historically preceded the prison as a legal punishment, given that it initially constituted a technology of exclusion aimed at managing those deemed dangerous, unproductive, or unable to integrate into the social order. Similarly, we examine the theory of the addressee of the criminal norm, as it explains the legal implications of criminal non-liability and the transition from a model based on culpability to one grounded in dangerousness.
Finally, we apply these premises to the Peruvian regime of criminal non-liability and security measures, identifying the existing contradictions between its normative foundation and its practical application. Consequently, we note that Foucault’s genealogy allows for an understanding of the persistence of certain "rationalities" of exclusion in contemporary criminal law and promotes a critical reflection on the constitutional limits of punitive power (ius puniendi).