Eredità casuistica e fattispecie penale. Radici, ritorni, nuovi scenari

This essay, which also serves as an introduction to the section, explores the historical and contemporary significance of the narration of the case in shaping the definition as well as the application of criminal offences. By analysing the different ways in which the fact was described and reconstructed during the trial in the evolution of the common and civil law systems, from the Middle Ages to the codification, the potential of casuistic reasoning for the development of crimi- nal law, its fruitfulness in providing solutions to new and unregulated cases within a pluralistic legal order, and its tension with the modern principle of legality are examined. Building on this historical account, the essay then investigates the distinction between fact, case and (criminal) ‘act type’ envisaged by the offence definition in legal reasoning and considers how a fact-centred judicial decision might provide effective outcomes in terms of balancing abstract definition of crimes and appreciation of surrounding circumstances. Finally, some suggestions are sketched on how the singularity of cases might be taken into consideration by lawmakers in drafting the definitions of criminal offences, without undermining the principle of legality but rather rethinking it in relation to the complexities of contemporary social and legal orders.