The perverse allure of retributive justice

In an article published yesterday, Claudio Cerasa aptly described the alarm and associated collective anxieties regarding the protection of public safety – which periodically spread throughout our country, partly as a result of the media’s recurring sensationalism – as a ‘psychosis of insecurity’, despite the significant gap – as statistical data demonstrate – between public perception and actual crime trends. This is a pathological phenomenon, exacerbated by the political forces that happen to be in government or in opposition at any given time. The former, in fact, tend to endorse and even exploit the collective perception of insecurity, churning out as a ready-made remedy (not least because it is low-cost) – and one that is lucrative in terms of easy electoral support – a continuous series of ‘security packages’ involving tougher penalties and harsher punishments (a trend that has, incidentally, under centre-left governments as well), which are in reality intended primarily to serve a symbolic and communicative function and to act as a temporary ‘social tranquilliser’; whilst the latter, on the other hand, usually accuse the majority parties of tackling the security issue in a superficial manner, promising more effective solutions (though never specified in detail!) as one of the reasons for replacing the governments in office. It is a politically perverse dialectic, which has unfortunately persisted for several decades now.

It is indeed worth continuing to reflect both on why the issue of security has taken on such central political significance, and on the reasons why criminal law serves as a persuasive election campaign tool. These are not new issues, nor are they limited to the Italian context. In this regard, there has for years been an excellent body of socio-criminological literature at an international level, which cannot even be briefly touched upon here. What is certain is that our country, too, has become one of the contexts in which the war on crime (even if only perceived as such) carries decisive political weight within the overall governance of society. And this does not merely call upon the expertise of legal scholars, criminologists and sociologists: in reality, it is a complex, fundamental problem which, more generally, concerns the very workings of contemporary democracy when considered in the entirety of its components and which, in all likelihood, constitutes one of the most significant indicators of its descent into crisis.

To put it as simply as possible – and at the risk of oversimplifying – one can probably hypothesise a strong link between the current difficulty and/or inability to engage in politics using genuinely political strategies and resources, and the overused and inflated recourse to punishment. To invent new offences and introduce or increase penalties – especially if this is done with the sloppiness and carelessness with which the legislative machine operates today – all it takes is to jot down a few words by hand or on a computer and immediately pour them into a regulatory framework: a framework that has increasingly taken the form of a decree-law of supposed urgency, which the governing majority then imposes for ratification without any real parliamentary debate. In fact, devising new offences and penalties requires no innovative ideas, no far-reaching programmes, nor even significant financial or human resources or commitment. Even a backbencher of limited ability, in an attempt to lend a modicum of meaning to an otherwise almost useless presence in Parliament, can champion yet another piece of criminal legislation as a remedy for some newly emerging social ill.

Criminal law thus becomes an election campaign ploy because it lends itself to covering up the absence or inadequacy of political ideas and programmes, of strategies for action in the fields of the economy, social prevention, cultural and educational tools, and so on. But, if this is the case, it is criminal law itself that becomes politically dangerous in its own right: not least because its principles and rules, even those of constitutional origin, do not in themselves possess the strength to erect insurmountable barriers against the frequent forms of improper political exploitation to which it is subject. But there is more to it than that. Perhaps, as I too suspect, criminal law carries within it the risky tendency to prove profitable in terms of public support for further – and by no means secondary – reasons linked to the psychology of punitive justice. Friedrich Nietzsche, with penetrating insight, had already glimpsed in punishment ‘a mime of war’. Meanwhile, on the social psychology front, that scientific school of thought which interprets legal punishment itself as a response designed to channelling aggressive feelings or hostility towards those lawbreakers perceived, in the shifting historical circumstances, as fearsome ‘enemies’ of society (for example, today once again identified as thieves and robbers, as well as outsiders such as immigrants, those who are different, and young protesters, etc.). This, moreover, seems to tie in well with the persistent tendency of populist movements and parties to pin the blame for social problems and ills on the supposed enemies of the day—the ‘healthy and honest’ people—as in the emblematic case of the corrupt and those who bribe them, who are strongly opposed by the Five Star Movement, the very force behind the hyper-repressive and symbolic ‘anti-corruption’ law. From this perspective—and indeed regardless of whether the political forces pursuing it at any given time are on the right or the left— punitive rigour lends itself to the political exploitation of a thirst for retribution stemming from feelings of fear, anger, indignation, frustration, resentment and bitterness that spread amongst the most vulnerable sections of society, particularly during periods of socio-economic crisis, or in any case when there are complaints about the betrayal of promises and expectations on which people had relied. On the basis of observations such as these, is it far-fetched to hypothesise that criminal law has, so to speak, in its very DNA, a sort of intrinsic and underlying polemical and vindictive-retaliatory component, which helps to explain its electoral appeal and thus the incessant tendency to resort to it as a means of winning support?

Be that as it may, the prospect of opportunistic exploitation of the criminal justice system – which is currently intensifying in the run-up to the 2027 general election – is now reaching levels that would be hard to imagine even for a very right-wing majority, one which nevertheless claims to operate within the bounds of the Constitution. Some proposals at the centre of the most recent political and media debate are particularly worrying in this regard, namely: the removal of the requirement of proportionality in self-defence; preventive police detention; the relative presumption of criminal responsibility for 14-year-olds; and similar measures. In truth, this is not even a return to the original Rocco Code, a product of fascism; rather, it amounts to an attempt to go beyond what even that fascist code had deemed itself capable of daring to do.

This is a cause for concern, no less than it is a cause for surprise. It is not only the constitutional legitimacy of criminal law that is under threat. First and foremost, and more generally, the quality of politics and the overall crisis of Italian democracy are at stake – a crisis, indeed, partly caused by the opposition’s persistent inability to fulfil a political and cultural role commensurate with today’s challenges. This serves as confirmation of the close links between criminal law and democracy.