Riflessioni con Marcello Gallo su alcuni argomenti di teoria generale del reato

[Machine translation] The writing begins with the thought of one of the dogmatic maxims of the second half of the twentieth century, appreciated above all for his contribution to the scientific nature of dogmatics, to verify the need and the possibility of continuing to use the dogmatic method in the current situation of criminal legal science. The work of Marcello Gallo represented a milestone in the series of dogmatic studies, and the discussion on the formal and evaluative method in law is a topic that can be said to be constantly recurring. Although most of the legal doctrine of the 19th and first half of the 20th century favored formalism (Kelsen), there were notable exceptions. The most important exception in criminal law was undoubtedly the one represented by the philosophical orientation of the Hegelians of criminal law. These tensions obviously existed at the end of the 19th century in the context of the debate over the method of the human and social sciences (the so-called controversy over value judgment). Then as today, it was considered that the dogmatics of criminal law aimed at positive law - laws - and that its method consisted in the description and systematization of its content. On the other hand, however, others attributed to her the task of recognizing the content of the “just” right, according to an idealistic and constructive conception. Dogmatics consists in this: every process of legal qualification proceeds from certain formal categories that remain constant in themselves, whatever the individual differences between the individual objects to which they are applied from time to time. The fact that these categories are more or less consciously attributed the role of an axiomatic premise of every cognitive experience that contains the phenomena of law explains that in this regard we speak of the logical-transcendental conditions of every legal event. The hard core of Italian criminal dogmatics lies in knowing how to combine the dogmatic approach with the regulatory data (in many cases rather scarce) to give it a valid meaning that is always and systematically unobjectionable. It is therefore necessary to abstract both from subjectivism and from naturalism and, as far as possible, to keep the investigation on a regulatory level, more aseptic and free from personal contamination by the interpreter. For example, in matters of guilt, it is necessary first to identify the situation of 'having' to act according to the regulatory prescription and, only later, to identify the note of 'power' to comply with the rule of conduct, always according to a hypothetical regulatory judgment. An attitude, that of dogmatic, prescriptive, of “having to be”, towards the formulation of regulatory precepts, both from the point of view of intelligibility and from the point of view - closely connected - of the “graspability” of the protected legal asset so that it can be perceived by the citizen at least in the secular sphere of the profane. 'Obligation' and 'wrongful' therefore represent an entanglement in a certain sense symmetric, considering the dialectical role that the two figures play in the legal discourse: a situation of duty - assessment of anti-duty, so that the fact carried out by a non-attributable person fits perfectly into the scheme of 'violation of obligation' - 'wrongful' and gives rise to all the consequences provided for by the legal system., There are tangible consequences with regard to 'causes of non-punishment'. When asked whether the existence of a criminal offense should be denied when, despite the assessment of a fact objectively corresponding to the regulatory description, the non-application of the penalty is ordered, on a strictly dogmatic level, the answer is that it is necessary to take into account a whole series of assumptions that link back, always in the abstract, the application of a penalty or a security measure or justify a sentence to compensation for non-pecuniary damage. The central core of the classification of a fact as wrongful, makes it possible to frame that case as precisely as possible in the context of causes of non-punisability (extinctive or personal) or in the field of causes of justification if that qualification, reconstructed by legal means, is missing., The consequences, even in terms of criminal procedure law, are clear: the construction of a dogmatic offense based on duty and obligation, as seen so far, will require the judge to give priority to an assessment of the merits and, if there is a cause for acquittal or dismissal, to immediately take account of it. The extinctive cause of the crime does not remove any qualification of wrongdoing and will preclude a conviction even if, in reality, the fact has all the characteristics of the crime., The paper rethink about some fundamental problems of dogmatics in the light of the thought of one of the greatest Italian penalists of the second half of the 20th century. Beginning with the concept of the penal norm, straddling imperativist theories and theories of hypothetical judgement, the concepts of duty and obligation are examined and, through this theoretical filter, an attempt is made to offer a systematic vision of some general problems of criminal liability