Vincenzo Maiello

Law and interpretation in the ‘system’ of Dei delitti e delle pene*

Contribution published in the Journal disCrimen and herein contextually republished.
The contribution is subject to the editorial and evaluation criteria of the aforementioned Journal.


Abstract. More than two hundred and fifty years after its publication, On Crimes and Punishments still appears as a seminal book still questioning the fundamentals and functions of the most terrible public authority.
The importance of the pamphlet is that it represents a first, embryonic criminal policy program oriented towards the minimisation of criminal law, coming out from the recognised centrality of the natural rights.
In this perspective it is build up a system based on the law, qualified by clarity and precision and by the harmful principle, with no interpretation, meant as a prohibition for the judge to corrupt the limits of the sovereign’s criminal policies.
The work analyses the meaning and scope of the concepts of law and interpretation coming out from the
booklet, highlighting their consistency with the imprinting of the Beccaria’s project derived from the contractual origin of the State and the limited nature of the power to punish.
t is an approach that, in time of crisis of the law and overflow of interpretation, expresses a
spirit which needs to be recovered in a modern struggle for the law.

SUMMARY: 1. On Crimes and Punishments and its worth of ‘first beginning’. — 2. The contractual origin of the sovereignty as a source of legitimation for a law-based protection of rights. — 3. The “background” of Beccaria’s thoughts on law and interpretation. — 3.1. The origin of sovereignty. — 3.2. The origin of the power to punish. — 3.2.1. The extrema ratio of criminal law: the unstated immanence. —  3.2.2. The proportionality principle. — 4. “Only the law may decree punishment for crimes”: the origin of the rule of law. — 4.1. The nullum crimen principle: i.e. the separation of powers between the sovereign and the judge. —  4.2. The textual dimension of criminal law. —  5. The topic of interpretation.


* Article to be published in Studi in onore di Lucio Monaco.


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