The Roots of Italian Penal Codification: Nation Building and the Claim for a Peculiar Identity in Criminal Law

The chapter analyses the discourses used by Italian pre- and post-unitarian jurisprudence to corroborate the existence of a national genius of criminal law. After the political unity jurists were committed to penal codification, which, however, should not be based on foreign models and in particular on the Napoleonic Code (imposed to the Kingdom of Italy from 1811 to 1814), but had to correspond to the Italian most sophisticated and most shining ancient tradition of criminal law. In order to create rather than simply recognize such unitarian and independent tradition, some scholars emphasised the pivotal law of a national legal history as a cultural means to pave the way to a prompt codification. Other scholars, yet, more realistically recognized the considerable differences between criminal law approaches as well as the lack of a theoretical identity. Following the Savignyan method, they suggested to postpone the national codification until the gradual formation of a truly national criminal law doctrine, influenced neither by the French jurisprudence nor by the German doctrine. The Zanardelli code of 1889 was the final outcome of this hybrid past- and future-oriented attitude