The lost primacy of individual freedom

Among the great achievements of the rule of law is, without a doubt, the primacy of individual freedom. This conquest should be the transversal heritage of all contemporary political cultures, whether conservative or progressive. At least since the end of the 18th century, the subjection of power to the law (rule of law) has always had, as its substantial content, the idea-force that State interference in individual spheres should be guaranteed by a clear legislative provision, rationally justified and, above all, reserved to situations in which that interference appears strictly necessary. And this, especially when the intervention of public power takes the most invasive form for fundamental rights, limiting spheres of freedom through the imposition of penalties: hence the guiding principles of subsidiarity and extrema ratio around which - for more than two centuries - the legitimacy of criminal law has gathered.

These principles now appear to be in a state of overt abandonment: the prevailing ideology - whatever the political majority of the day - sees the criminal law as the salvific instrument to counter any problem or social irritation, and the introduction of new crimes is affirmed as an emblem of efficiency and state interventionism, often profiting from it in terms of electoral consensus.

This is not to deny, in principle, the capacity of the democratically elected legislator to intercept the demands for protection coming from society. It is a question, however, of noting how, even in Italy - for years now and by majorities of every colour - criminal policy has been sucked into the whirlpool of punitive populism, which has elected criminal law as the forerunner in the 'fight' against real or presumed emergencies, and which celebrates its splendours now on the altar of public safety (so-called 'securitarian populism'), now on the bedside of old and new, and now on the bedside of the old and new, of the new.so-called securitarian populism), now on the bedside of old and new 'victims' (so-called punitive respectability), the satisfaction of which is entrusted not to social policies but - with convenient disengagement - to the illusory introduction of new crimes or systematic aggravations of punishment.

On this slope, the gigantism of criminal law - overwhelming individual freedoms - has reached such levels that no one has ever really been able to quantify with certainty the number of offences in force in our country: several (tens of) thousands, a perennially unsaturated figure that advances in geometric proportion, day by day, under political pressure from every flag.

The consequences of this pan-punitive and prison-centric drift are, moreover, there for all to see, as witnessed by an ever-increasing prison population that has now reached levels of overcrowding (over 130% on average) unworthy of a civilised country, and clearly incompatible - as the painfully pressing number of suicides in prison painfully reminds us - with the principle of the humanity of punishment. However, the departure from the principle that sees in punishment (and in prison) the ultima ratio betrays, upstream, the definitive departure from the primacy recognised - by a centuries-old tradition - to individual freedom: a primacy now lost and that, we repeat, should instead be part of the "culture of guarantees" of any political majority in government in the country. The price that this departure risks imposing on us is the involution of our State of