Luciano Eusebi

Quale oggetto dell'abolizionismo penale? Appunti nel solco di una visione alternativa della giustizia

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The paper questions about what could be the object of abolitionism in the context of criminal law today. Traditional thoughts on this issue have played an important role. However, criminality can't be explained by mere dynamics of criminalization (denying the autonomy of criminological research in relation to criminal law): the result is that an indiscriminate abandonment of the judicial management of injuries to constitutional values can't be recommended as an appropriate strategy. The perspective focused on the reduction of the criminal law "borders" (aiming to change the range of people punished, without reconsidering the dynamics of classical criminal law intervention) appears equally ineffectual. Alternatively, it is proposed to overcome the criterion that has characterized for ages the determination of criminal punishment, both in legislative and judicial perspectives: a criterion founded on the idea of the punishment as a negative for negative dynamic (evil for evil), defining its measure on the reciprocity of the penalty to the seriousness attributed to the crime and wrongly considered able to express automatic effects of general and special prevention. For this purpose, the paper offers a different model of crime prevention, based on personal consent: that is on the appeal to free choices of adhesion to compliance with the criminal laws and of willingness to reparative behavior of the crimes committed. But it also considers the importance of a serious commitment to face – from the economic point of view – the interests that more and more often lay behind the modern forms of crime. The essential role of strategies of criminal policy that promote primary prevention is stressed as well.

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