New Penology and Legal Traditions: Cultural Variations in the Criminalization Process between the 19th and the 20th centuries.

Michele Pifferi (Law Department – University of Ferrara)

The rise of criminology at the end of the 19th century had different roots and followed unlike pathways in Europe and in the United States. The genetic diversity characterizing the parallel histories of the reform movement sheds light on the cultural distance that divides the continental criminal law system from the American one. Given the «international penological orthodoxy (…) on both sides of the Atlantic», in James Whitman’s words, this paper assumes, however, the different premise that the criminological wave (1880s-1930s) was not completely uniform, but reflected in its variety the differences between American and European legal cultures, their philosophic and constitutional foundations of punishment and their notions of the nullum crimen nulla poena principle. At the end of the 19th century, as Train put it, both the European and the American criminal systems «reached a point where the apparently firm foundations of criminal law appeared to quake»: penal doctrine, penology and criminology looked at comparative legal studies in search of common solutions. However, the peculiar penologies in Europe and the United States impinged differently on both the rationale of punishment and the function of the principle of legality. But was there a single European as well as a single American penological identity? Weren’t there deep varieties from state to state, from school to school? Even if legislative differences and local peculiarities are undeniable, the international debate on the ‘new penology’ (i.e. individualization of punishment, indeterminate sentence, rehabilitation, juvenile offenders’ treatment, social defence) emphasizes a sort of consciousness of the distinctive identity of the two groups. Under the surface of this dualism there are two contrasting visions of how the criminal law system could be reformed by criminology and two different perspectives on the basis, the purposes and the aims of criminal law. This contrast could be summarized as a methodological divergence (American pragmatism vs. European doctrinarism) at the origin of the penal reform movement, whose consequences are reflected in the patterns of administration of criminal justice. This paper focuses on how this dichotomy has grown, on which legal reasoning has been grounded and, finally, on which traditions and constitutional rules was the legal identity legitimized.