Massimo Meccarelli

Paradigms of the exception in the penal modernity. A historical-juridical perspective

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The essay intends to analyse, in a long-term framework, the juridical regulation of the exception, juxtaposing two approaches to the problem founded on two different conceptions of juridical order: that which is typical of the medieval and early-modern period and is characterised by the centrality of "ius commune" jurisprudential law and that which belongs to the 19th and 20th centuries, and is embodied by the primacy of statute law and by codification of law. The first approach perceives the exception as a manifestation of extraordinariness and includes it in the juridical order raising the question of the correlation (yet to be constructed) between "ordinarium" and "extraordinarium". The second approach relates the exception with the emergency and excludes it from the range of the procedures that constitute the juridical order, highlighting the need for an opposition (still to be kept) between what is ordinary and what is exceptional. The changing of paradigm which modernity introduces by way of the affirmation of the Enlightenment turning-point, finds one of its correspondences in the twofold level of legality which characterises the penal systems of the 19th and 20th centuries; the essay follows its trends with reference to the Italian events in the various phases of the unitary State, and ends with some observations on the limits of such outlining when compared to management problems of states of exception and to endurance problems of the juridical order, raised by modern times.

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