Memoria e comprensione dell''altro' tra difesa sociale e garanzie individuali: la prospettiva giusletteraria per un diritto penale democratico

Twentieth Century history provides ample evidence of the fundamental role that law can (and did actually) play in the origins of crimes \uabthat we can neither punish nor forgive\ubb and, more generally, of forms of exclusion and \uabreification\ubb aimed against groups or individuals labelled, under different political and social circumstances, as \u2018alien\u2019 and \u2018undesirable\u2019, because of \u2018racial\u2019 or \u2018biological\u2019 factors (as under the Nazi and Fascist regimes) or of \u2018administrative\u2019 features (such as illegal immigration, for instance). Our past reveals the great weight of \u2018legal dehumanization\u2019 as a pivotal element conducive to social and psychological as well as, eventually, physical dehumanization \u2013 and subsequent elimination \u2013 of millions of people. This fundamental role is not just related to law\u2019s specific functioning, but, even more, to its strong symbolic significance. On the one hand, the law \u2013 and particularly criminal law \u2013 expresses in the most forceful way a society\u2019s idea of what it should be (its \u2018Sollen\u2019), while, on the other, its fundamental formalistic and procedural traits allow its (even too easy) exploitation by illiberal and antidemocratic forces, often on grounds of a (real or alleged) popular will. Criminal law in particular, being intrinsically aimed at pursuing social defence, may end up seeking it even to the detriment of fundamental human rights, and often focusing on persons or groups who, because of their relative weakness within society, can easily be selected as \u2018enemies\u2019 or \u2018parasites\u2019. This essay tries and investigates whether a \u2018law and literature\u2019 \u2013 and, more specifically, a \u2018justice and literature\u2019 \u2013 approach could contribute to finding a new balance between legal formalism \u2013 particularly by taking advantage of its guarantee potential \u2013 and an ethical attitude to criminal law capable of escaping the snares and dangers of contingent social morals, as well as of the totalitarian \u2018ethical State\u2019, in order to attempt at developing a \u2018reconciliation\u2019 between \u2018law\u2019 and \u2018justice\u2019. More specifically, a \u2018narrative approach\u2019 to the understanding of the human being is explored, as a possible way of \u2018injecting\u2019 into criminal law a set of ideas and principles working as \u2018antibodies\u2019 to its recurring securitarian, segregationist, warmongering, and ultimately authoritarian tendencies