"Casuistry" and rule-based approach in criminal law. Historical perspectives, current developments.

The research project concerns an interdisciplinary investigation of two different methodological approaches to criminal law, namely the casuistic one and the rule-based one. These approaches, their reciprocal influences and intertwined developments, as well as their theoretical and practical implications will be examined diachronically, with reference to both past and current legal contexts. The project will contribute to historicizing the assumption that a legal framework based on general rules and principles is logically more rational, guarantees law equality, and better corresponds to fundamental principles of criminal law such as the principle of legality. To do so, legal arguments, definitions, conceptualizations and systematic theories on crimes and punishments will be examined in relation to (and as an expression of) specific political projects and systems of legal sources. While, indeed, a casuistic approach was consonant with a pluralistic legal order such as the ius commune, granted its coherence and preserved its legitimation, the rise of the modern State led to a monopolization of the legislative power whereby more rational and principled systems of criminal law were needed. The project, on the one side, will contribute to rethinking the historiographical assumption according to which the transition from a criminal law system inferred from cases to one built around principles entails an undisputed rationalization and progressive legal evolution. Criminal law scholars, by resting on the outcomes of the historical research, will examine the current potential and repercussions, both theoretical and practical, of resorting to casuistic.