RICERCA ITALIANA     

SECULARITY, VALUES AND CRIMINAL LAW

Università degli Studi di Parma

Abstract

The research programme aims to analyse the relationship between the principle of secularity in criminal law and the respect of those socially accepted values towards which criminal law should tend.
On one hand it is necessary that criminal law protects the most important values of a society in order to accomplish its main function: the preservation of society. Criminal literature has often underlined the need of closeness between criminal law and cultural norms (kulturnormen)in order to guarantee more efficacy to criminal law. On the other hand it is important to separate the sphere of morals from that of religion, avoiding confusion between “crime” and “sin”.
Also in our criminal legislation we can find some ethical connotations but it seems not easy to eliminate this approach.
Even if Secularity of criminal law is universally accepted as a principle of legislative science, it risks to be harmed when in contact with needs of protection and new criminological phenomena. This shows up with particular emphasis in a multicultural society, as the contemporary one, where the protection of the values of the society in which criminal law acts, means a sacrifice, within certain limits, of those conflicting values which are expression of ethnic, religious and cultural minorities.
In this research project we aim to focus on the problematic aspects of these topics and to introduce this analysis within the discussion on the new criminal codification. In order to reach this aim a comparative analysis will be relevant, with particular reference to european systems and those extraeuropean ones which can offer a useful comparison with our system.
On this purpose we will consider the new Acts concerning criminal law enacted by the Parliament and we will analyse them according with the two guidelines of the project: “secularity” and “social values”. “Secularity” and “values”, considered as “lights” of criminal law’s “path”, will be analysed both in a national dimension and in an international one, evaluation the influences of international documents in the choices of the national legislator. <<<

Principal Investigator

Alberto Cadoppi Università degli Studi di PARMA

Research Objectives

The main objective of this research programme is to search into the difficult relationship between the “secular character” of criminal law and it’s necessary orientation towards socially accepted values.
In particular, this Project aims to:
1) measure the actual secularity level of Italian criminal law;
2) measure the actual secularity level of other countries’ criminal law (European and non-European countries);
3) compare the national secularity level with that of other European countries;
4) ascertain which are the most significant social values in our country and which are their needs of protection. This analysis will be done also with the use of empirical and social sciences.
5) ascertain the adherence of criminal law with the most significant social values;
6) localize the new needs of protection which should be taken into consideration by criminal law;
7) provide some guidelines, drafted according to the “secularity principle” and to the orientation towards socially accepted values, in order to help the choices of the legislator and to guide the decisions of the Constitutional Court);
8) draft reform proposals with reference to the different topics of the research. These topics are explained in the following points.
In conclusion, the aim of this research is to study the problematic aspects related to the cohabitation of secularity and values within criminal law and this in order to include this analysis in the discussion on the new criminal codification. <<<

Timescale

24 months

National and international background

The "principle of secularity" of criminal law finds today unanimity of consensus both in Italy and abroad. In Italy it has been analysed in various publications such as the works of G. Fiandaca and S. Canestrari; the most important example of the criminal literature on this topic abroad is the book of Joel Feinberg, “The moral limits of criminal law”, Oxford, 1984-1988. This principle finds its origin in the past and especially in the thought of the Enlightenment: Cesare Beccaria, the most known author of those times, distinguished criminal law from morals and religion and consequently crime from sin in his book “Dei delitti e delle pene” (1764). The fight for a progressive separation between criminal law and moral was difficult, long and tormented. Even if in the XVII century some sins have been eliminated from the list of crimes (such as heresy and witchcraft), criminal law remained steeped with moral, ethic and confessional contaminations for a long time.
The French criminal code of 1810 was the first example of a modern code on this point: in this code, for example, incest and suicide were not considered crimes. During the XIX century, our pre-unitarian codes made a step backward, coming back to a less secular idea of criminal law: an example of this view is the fact that crimes against religion were always placed in the first section of criminal codes.
If we think about our criminal code (“Codice Rocco” of 1930), it has been object, in the last thirty years, of many changes, both of a legislative and jurisprudential nature, which have confirmed the necessity of secularity in our criminal law.
Nevertheless, also today we can notice that some ethical elements remain and that they will be eliminated with difficulty. In the meanwhile new values and new needs of protection, which cannot be questioned in their general principles, have brought to the entering into force of new laws, which seem to contravene the principle of secularity. An example of this attitude is the recent Act 38 of 2006, which modifies the Act of 1998 which introduced in our codes crimes against child pornography. This new law, instead of protecting the person, seems to punish a “type of author”, whose behaviour can be immoral but sometimes not offensive towards real persons.
For example the choice to sanction the person who uses doping substances (Act 14.12.2000 n. 376)represents a limit to individual self determination, which perhaps it is not understandable according to the principle of secularity.
Therefore, the secularity of criminal law, even if universally accepted as a principle of criminal science, risks to be contravened and injured when in contact with practical needs of protection and new criminal phenomena.
From another point of view, criminal law has to protect general accepted values in order to satisfy the harm principle. A criminal law which would give up the protection of the most important values of a society would depart from it and would not respect its fundamental aim which is the preservation of society. The need of a straight relationship between criminal law and cultural rules (kulturnormen) has been often highlighted by criminal literature, even if there is not unanimity on the exact extent of this relationship. One of the most difficult points regarding the analysis of this relationship concerns, indeed, the contemporaneous need to observe the principle of secularity. The question is: how can criminal law protect the most important values of a society and at the same time be “secular”, that means uninterested towards the different values of the same society or tolerate them?
The problematic nature of the relationship between these two different needs of criminal law shows up with particular emphasis in a multicultural society, where the protection of the values of the society in which criminal law acts means a sacrifice, within certain limits, of those conflicting values which are expression of ethnic, religious and cultural minorities.
A criminal law which would totally respect the principle of secularity (and the principle of tolerance is a natural “pendant” of it) should ought to refrain from not intervening but risking not to protect the most significant values.
In one of his most recent works, S. Canestrari states that “secularity” is not only a “principle” but even an “element” of criminal law. He explains that criminal intervention must have the feature of “secularity”. Without this element the constitutional principles which sustain and limit criminal law would be compromised. The choice to intervene in order to solve criminal problems cannot step over those fundamental principles (equality, pluralism, self-determination) that the Constitution provides in order to protect the aims of society. For this reason it seems better to refer to Secularity as an indispensable element (characteristic) of criminal law, a consequence of the principle of legality, principle of materiality, principle of harm, principle of the personality of criminal responsibility, principle of extrema ratio, principle of precautionary function, and, in general, of the principle of equality and freedom of expression.
Secularity, considered both as a principle and as an element of criminal law, offers coordinates for a right method of analysis and interpretation. The right interpretation is the secular one, constitutionally oriented, which can guarantee pluralism, implement a big number of conflicting interests, protect the weakest subjects.
The test-beds in which the principle of secularity shows itself are those in which it looks evident the relationship between morals, religion, and criminal law. Think about topics such as the function of sanction, crimes against morality, prostitution, crimes against family, sexual crimes, child-pornography crimes, cultural oriented crimes and cultural defences, female genital circumcision, the most broad problem of integration of minorities and multiculturalism.
Secularity intended both as a principle and as an element of criminal law offers directions for a correct method of analysis and interpretation. The exact interpretation, a constitutionally oriented one, must be “secular”; it must be able of guarantee pluralism and to put it into practice, to implement the biggest number of conflicting interests, to protect the weakest persons. <<<