The reassurances offered by ‘fast fashion’ criminal law are short-lived and do not provide protection

In recent days, Giovanni Fiandaca has described in these columns the contours of a criminal law reduced to an ‘election ploy’: criminal offences that serve to garner short-term political support rather than to protect a public interest. There is now a way of drafting – and applying – criminal laws that closely resembles a fashion trend: legislation is rushed through in the wake of current events, lasts for a season, and is then shelved amongst the vague and often forgotten legislative texts. One might speak, using a phrase borrowed from the fashion world, of ‘fast fashion criminal law’: a garment designed not to last, but to be worn immediately, and to be shown off rather than to serve any real purpose. The idea is as old as the proverb it turns on its head. It used to be said that the habit makes the monk; here, the habit no longer makes the monk: it makes the meme and merely identifies the wearer. It is the chameleon-like criminal policy of hyper-communication, which changes colour as the threat level shifts and entrusts the law with the task of conveying a message. The criminal offence is gradually losing its traditional protective function and becoming a symbol: it serves to demonstrate affiliation and to reassure, responding to a demand for security that perception, rather than reality, makes pressing. But the reassurance it offers is precisely that of a seasonal item: it is convincing whilst it is new, then it wears thin. That such a garment sells so easily is neither coincidental nor surprising. At work here is the vindictive, retaliatory element that has always accompanied punishment: the need to counter one wrong with another and to give the alarm a face upon which to rest. The seasonal law panders to that need. But the demand driving it – a person to hold accountable at all costs, and immediately – does not end with the first stage, when the law is drafted: it resurfaces in the second stage, when the law is applied, taking on a judicial guise. In the first stage, that of the legislation, the cycle has become rapid: it tends to arise in the wake of the event and to fade away with the attention that generated it; Emergency decrees align with this pace. What suffers are the less conspicuous yet more valuable qualities of criminal law: precision and certainty, the coherence of the system, and the ability of the legal provision to genuinely guide behaviour. The product of this hasty tailoring is an offence without clear boundaries, loosely woven so that it can adapt to what is not yet known. Fast fashion produces disposable items; the rule of law, by its very nature, is a form of ‘fashion’ characterised by long timeframes, and the extended period of dialogue and deliberation is ill-suited to the fleeting nature of public attention. In the second phase – that of the trial – the garment is not sewn: it is simply put on. When faced with an adverse event or a disaster, people demand to know who is responsible, and the search often begins at the top, even before considering the rules that should have been followed. Thus, the figure of the all-knowing leader takes shape, from whom it is expected that they knew everything, foresaw everything, and could have prevented everything.

With the benefit of hindsight, and within the scope of the duty of care, it is almost always possible to identify a course of action that could have been taken more appropriately: and an offence with unclear boundaries can then be tailored to the specific circumstances of the event. This is the risk that emerged, for example, in the Viareggio case, when – in order to reach the top of the parent company – the charge was changed from omission to decision-making, and in Genoa, in the trial concerning the Morandi Bridge, where the conviction of many responsible parties was counterbalanced by the acquittal of almost as many: as if the selection of those who should be held accountable – which ought to precede the trial – had, to some extent, been incorporated into the proceedings. Every incident seems to require a designated culprit, and the only uncertainty lies in who will bear the blame. These two processes are intertwined and feed off one another: the demand for punishment generates vaguely defined laws and high-profile charges, and the high-profile nature of these charges in turn fuels the demand. The bill, however, is not settled in the shop window: the search for a scapegoat produces more defensive caution than prevention, and to adverse events – which almost always arise from a combination of multiple causes – is added the risk of liability based on position rather than fault, on the seniority of the role rather than on what could actually be seen from that position. ‘Fast fashion’ communication may win immediate approval, but it is unlikely to replace criminal policy: it can change its outfit for every occasion; criminal law cannot. For there is little left of a law designed solely to be paraded: a discarded garment and the principles of due process left by the wayside.