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 >>>

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 >>>

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 >>>