Old achievements and new frontiers of the principle of “offensività” in the italian criminal law

Abstract

After a historical framework about the italian literature on the development of the constitutional approach to the theory of crime, the article evaluates the current crisis of the principle of harmfulness, based on a critical approach to the protected interest (legal good) and analyzes alternative legitimacy paradigms of criminal law. Before the choice between dropping in favor on these or reviewing and placing again at the heart the constitutional model of criminal law, the author leans toward the latter, considering the alternatives scenarios inadequate. Moreover, this conclusion is in line with some recent trends of the ordinary and constitutional judges and above all the constitutional architecture of criminal law - legality, culpability, rehabilitation of convicts - is based on and justified only by full compliance with the principle of harmfulness (offensività), whereby only those conducts that infringe constitutionally relevant interests can be lawfully punished.