The criminal law of the moderns is born with two faces. The Enlightenment and penal liberalism — from Beccaria onwards — conceived it as a double-edged weapon: on one side, the defence of rights through the legitimate use of the State's force; on the other, the defence from the State, the limit against the excess and the arbitrariness of that same force. Sword and shield.
Protection of the citizen against those who attack him, and protection of the citizen against those who punish him. It is this balance — and this alone — that makes criminal law liberal.
Today that weapon has turned around. The observation from which this blog is born is simple and grave: criminal law is increasingly becoming a means of protecting the power of the strongest against the weakest. It does not protect rights from force: it protects force from rights. When this happens, criminal law does not merely fail: it turns into its opposite, into an instrument of injustice. It is no longer the liberal criminal law we know. It is something else — still ill-defined, and for that very reason to be studied with urgency.
In Italy, worse than elsewhere
Inequality in the distribution of punishment — implacable with the weak, timid with the strong — is not an accident. It is a tendency, and in Italy it is more advanced than elsewhere. It can be recognised at many points of the system, which are not isolated defects but symptoms of the same torsion:
- an academic legal culture running behind, which treats criminal law ahistorically, works on the words of the statute and thereby validates the law as it is; which busies itself with formalistic exercises on "231" — accessory liability — and deserts the predicate offence, the principal liability: the cat chasing its own tail;
- the disappearance of the critical criminology of corporate crime; the theme of the crime of the multinationals is almost a taboo;
- the absence of a systemic critique of the dramatic failure of the administrative supervisory bodies, which in practice facilitate the offence and sometimes promote it;
- a fundamentalist emphasis on procedural safeguards which, behind the nobility of the principles, conceals claims to impunity — the standard of "beyond any reasonable doubt" (Art. 533 of the Code of Criminal Procedure, 2006), in trials involving complex and diffuse causation, risks becoming the perfect shield for those with the means to render unprovable what they have caused;
- an excess of procedural devices which, worked by well-equipped defences, open escape routes at every level of the proceedings;
- an exasperated public delegitimisation of the public prosecutors, as soon as their investigations touch the vital interests of power.
This is not an impression, and it is well to know it: the best international criminology has been saying so for decades. Since Edwin Sutherland founded the notion of white collar crime (1939), and since Frank Pearce spoke openly of crimes of the powerful (1976), a line of studies — represented today by authors such as Steve Tombs and David Whyte, or Vincenzo Ruggiero — has shown that the selectivity of the criminal justice system, when it strikes the powerful, turns over into impunity: not by chance, but by structure. It is the critique of the ideological imprint of our historical moment, which runs across the whole of the West: a criminal law that moves in a single direction, blunting the weapons of the protection of rights precisely as the threats of the great powers grow — ever more supranational and ever less reachable by the law. In Italy this drift finds particularly fertile ground, because here — history teaches it — the State does not punish itself, and when it is complicit or a joint participant in the crime of the powerful, the judge is called upon to judge even those who appoint him.
What we do
This blog is born to name what almost no one dares to name, and to do so with method. There are two paths, and they join. The first is theoretical: to describe the injustice of white-collar criminal law, to import with caution the categories of the criminology we lack, to give corporate crime back the study it deserves. The second is concrete: to test the theses on the cases. The first is Miteni — the largest PFAS poisoning in Europe, a historic judgment and, at the same time, the anatomy of a justice that strikes the perpetrator and spares the principals. The theory explains the case; the case proves the theory.
A single principle of method: the parrhesia of the ancients, reread by Foucault — telling the truth to the face of power, accepting the risks, including personal ones, that this entails. And a single criterion of proof: the documents. Complaints, judgments, court records. Reality, not opinion.
Because a law that is not just is not law, but its opposite. And ours are dark times: someone must be able to say, tomorrow, that when the worst was coming and no one wanted to look, we were opposed.