Criminal law between a codicistic approach of an objective nature and new tendencies of a subjectivistic type*

Issue 6/2021

Abstract. On the occasion of the presentation of Daniele Piva’s recent volume, the author analyzes the methods and paths through which Italian criminal law, based, with the criminal code of 1930, on a clearly objectivistic imprint, was then oriented, also due to the influence of the French doctrine, towards a more subjectivistic approach, starting from sentence no. 364 of 1988 of the Constitutional Court in the matter of error iuris. Hence also the gradual development, albeit still embryonic, of a series of excuses, such as excess in self-defense, art. 384 c.p. extended to more uxorio cohabitants and the same state of necessity, also recently intended as an excuse. One of the most difficult issues remains the elimination of the irrelevance of emotional and passionate states through the concept of pre-guilt, also of French origin, however of considerable application difficulty, for which the author concludes his essay by considering that these new fields of matter recently plowed into substantive criminal law need to be implemented with the code of criminal procedure and, in particular, through the introduction, certainly not easy to implement, both of the criminological, or personological, and also the transformation of the criminal trial according to the two-phase North American model.

SUMMARY: 1. Introduction: the transition from objectivism to “subjectivism”. – 2. The meaning and scope of the sentence of the Constitutional Court n. 364 of 1988. – 3. The influence of the so-called neurosciences in addressing and solving problems relating to a more subjectivistically oriented criminal law. – 4. The gradual development, albeit still very limited, of a series of excuses, however absent in the systematic structure of the criminal code of 1930: the case of excess in self-defense. – 5. The necessary remedies of the criminological, or personological, expertise, to be introduced also in the judgment of cognition, and the adoption of the so-called “biphasic process”.

To read the Reflection, click on “open file”.

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* Testo, riveduto, ampliato e con l’aggiunta delle note, dell’intervento al Convegno: “A proposito di… le componenti impulsive della condotta. Tra imputabilità, (pre)colpevolezza e pena”, Iovene, 2020 (di Daniele Piva), Dipartimento di Giurisprudenza, Università degli Studi di Roma Tre, 5 maggio 2021.  Il video completo del convegno può essere visionato al presente link.