"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.