Extract

when their conduct jeopardizes foundational elements of society. As shown by cases of murder, kidnapping or theft, the idea is that, regardless of compensation to the parties harmed, such harmful behavior affects the community as a whole, thus creating social alarm. While criminal conduct should be punished, there are different reasons why punishment of criminal conduct has been deemed legitimate throughout the centuries. One motive is as old as the Old Testament stories: individuals may deserve to be punished either as a form of vengeance or as retribution, for example, an eye for an eye. Another aim of criminal punishment can be deterrence. Under this scheme, the reasons why criminals should be punished is either to deter them from committing further wrongs (that is, special deterrence) or to discourage other individuals from carrying out such crimes (that is, general deterrence). In addition, some legal systems opt for a form of rehabilitation: here the aim of criminal punishment is to re-educate individuals that have committed an offense. This is, for example, the principle enshrined in Article 27 of the 1948 Italian Constitution.

The reasons why punishment is legitimate, hinge on two conditions that make criminal punishment lawful. The first condition refers to a basic tenet of the rule of law, which is summed up with the idea that “everything which is not prohibited is allowed.” This principle is connected to the clause of immunity summarized, in continental Europe, with the formula of the principle of legality, namely, “no crime,...