POSITIONS OF THE ITALIAN DOCTRINE REGARDING THE NEW SOCIAL DEFENSE

• NCJ Number: 60322
• Journal: Revue de science criminelle et de droit penal compare Issue: 1 Dated: (JANUARY-MARCH 1979) Pages: 23-45
• Author(s): F CAVALLA
• Date Published: 1979
• Length: 23 pages
• Sponsoring Agency: Centre Francais de Criminologie
• Corporate Author: Editions Sirey
• Publication Format: Article
• Language: French
• Country: France
• Note: TRANSLATED TO FRENCH FROM ITALIAN BY DENYSE CHAST, OF THE FRENCH CENTER OF COMPARATIVE LAW

Annotation

THE PHILOSPHICAL PRINCIPLES OF ITALIAN VIEWS ON SOCIAL DEFENSE AND ITALIAN CRITICISM OF THE FRENCH SCHOOL OF NEW SOCIAL DEFENSE ARE OUTLINED.

Abstract

NEW SOCIAL DEFENSE IS VIEWED BY THE ITALIAN RIGHT AS TOO FAR REMOVED FROM THE TRADITIONAL CONCEPTION OF PENAL LAW AND BY THE LEFT AS TOO DISTANT FROM THE CLASSICAL SCHOOL OF SOCIAL DEFENSE. IN THE CRITICISMS OF THE SIXTIES THE NEW SCHOOL IS PORTRAYED AS SPIRITUAL POSITIVISM WHICH DENIES INDIVIDUAL VALUES AND LEAVES NO INDIVIDUAL CHOICE IN RESOCIALIZATION BECAUSE OF THE SCHOOL'S DOGMATIC VISION OF HUMAN RATIONALISM. THIS CRITICISM IS BASED ON A CONCEPTION OF MAN'S FREE WILL WHICH INVOLVES EXACTLY THOSE NEGATIVE CONSEQUENCES IN THE RELATIONSHIP BETWEEN MAN AND STATE POWER THAT ARE OPPOSED BY NEW SOCIAL DEFENSE. OTHER SUBSEQUENT CRITICISMS OF THE NEW SCHOOL RELATE TO THE SCHOOL'S FAILURE TO COMPREHEND THE IMPORTANCE OF A NORMATIVE TYPOLOGY OF OFFENDERS, THE DOUBTFUL FEASIBILITY OF INDIVIDUALIZING PUNISHMENT OR UNDERSTANDING INDIVIDUAL NEEDS, THE QUESTIONABLE RIGHT OF SOCIETY TO RESOCIALIZE INDIVIDUALS JUST BECAUSE THEY ARE DIFFERENT WHEN INDUSTRIALIZED SOCIETY IS ITSELF UNJUST AND CONDUCIVE TO CRIME, AND THE RELATIVIZATION OF VALUES EXPRESSED BY HUMAN LAWS AND THE SEARCH INSTEAD FOR UNIVERSAL VALUES. MARXIST CRITICISMS HOLD THAT PRISON ONLY MARGINALIZES CERTAIN GROUPS AND THAT SOCIAL DEFENSE, WITH ITS IDEOLOGICAL CHARACTER, IS BASED ON FALSE ASSUMPTIONS, TENDING TO PERPETUATE ESTABLISHED IDEOLOGIES AND EXPLOITATION BY DOMINANT SOCIAL CLASSES. THE CRITICISMS OF THE MARXISTS ARE MARRED BY THEIR MISREPRESENTATION OF MARC ANCEL'S (OF THE NEW SOCIAL DEFENSE SCHOOL) FUNDAMENTAL ASSUMPTIONS AND BY AN UNREALISTIC BELIEF IN SOCIETY'S PERFECTABILITY. ALL THE CRITICISMS PRESUME THAT MAN IS FREE AND WILL DO NO WRONG UNDER THE PROPER CONDITIONS; WHILE FIGHTING SUBJECTION OF THE INDIVIDUAL TO POWER, THEIR CONCEPTION OF MAN LEADS INEVITABLY TO THAT SUBJECTION. RESOCIALIZATION MUST BE CONSIDERED MEDIATION BETWEEN OPPOSING POSITIONS, NOT SUBJECTION OF ONE STANDPOINT TO ANOTHER. RESEARCH IS NECESSARY TO EVALUATE THE SUCCESS OF GOALS FOR RESOCIALIZATION. PROBLEMS ARE BEST RESOLVED BY CONTINUOUS CONFRONTATION WITH CRITICISM RATHER THAN BY NEW LAWS. NOTES ARE PROVIDED. --IN FRENCH. (KMD)