"Casuistry" and rule-based approach in criminal law. Historical perspectives, current developments

Abstract

The research project concerns an interdisciplinary investigation of two different methodological approaches to criminal law, namely the casuistic one and the rule-based one. These approaches, their reciprocal influences and intertwined developments, as well as their theoretical and practical implications will be examined diachronically, with reference to both past and current legal contexts. The project will contribute to historicizing the assumption that a legal framework based on general rules and principles is logically more rational, guarantees law equality, and better corresponds to fundamental principles of criminal law such as the principle of legality. To do so, legal arguments, definitions, conceptualizations and systematic theories on crimes and punishments will be examined in relation to (and as an expression of) specific political projects and systems of legal sources. While, indeed, a casuistic approach was consonant with a pluralistic legal order such as the ius commune, granted its coherence and preserved its legitimation, the rise of the modern State led to a monopolization of the legislative power whereby more rational and principled systems of criminal law were needed. The project, on the one side, will contribute to rethinking the historiographical assumption according to which the transition from a criminal law system inferred from cases to one built around principles entails an undisputed rationalization and progressive legal evolution. Criminal law scholars, by resting on the outcomes of the historical research, will examine the current potential and repercussions, both theoretical and practical, of resorting to casuistic. Particular attention will be dedicated to the interpretive possibilities posed by a reversal of the cognitive approach, from a rule that is applied to the case to a case that defines the rule to be applied, with regard to both national and super-national legal contexts. As for the former, the crisis of the principles of legality and typicality and the related increasing impact of super-national sources make the functioning of the traditional code-based system ever more problematic. Within a system of sources that turned from being national-law-based and driven by the principle of legality into being pluralistic, characterize by inter-legality and significantly dependent on courts’ decisions, the project will examine the pro and cons of a return to the casuistic paradigm. With regard to both the formation of common principles of European criminal law and the current developments of international criminal law, the research project will investigate if and to what extent casuistry might be a reasoning technique useful to link together abstract rules and concrete cases and, therefore, contribute to the coherence of those complex multilevel legal orders by refining fundamental concepts such as legality or culpability.

Risultati attesi:

Expected outcomes of the project mainly consist in the publication of articles in peer-reviewed international or national top-ranking journals as well as chapters in peer-reviewed internationally relevant collected volumes. Besides what has already been published (From Casuistry to the General Part. The Conception of Criminal Responsibility from the ius commune to the Penal Codes (Twelfth–Nineteenth Centuries), in Thomas Croft, Louise Kennefick, Arlie Loughnan (eds), The Routledge International Handbook of Criminal Responsibility, London: Routledge, 2024, 138-152), in the forthcoming issue (LIV/2025) of Quaderni fiorentini per la storia del pensiero giuridico moderno (to be published in September 2025), a specific section with six essays entirely dedicated to the project will be published. The section will be presented and discussed at an international seminar to be held in Ferrara on January 22, 2026. Moreover, the chapter “The mitigating circumstance of having acted for reasons of particular moral or social value in Italian Criminal Law”, written by the research grant holder at the Ferrara Law Dept., has been accepted for publication into the collected volume “Sentencing the Ethically Motivated Offender: Mitigation for ‘Ethical’ Criminality?”, edited by Julian V. Roberts, Jesper Ryberg, and Leo Zaibert and to be published by OUP in 2026.