The Theory of Social Defence and the Italian Positive School of Criminal Law

Abstract

This paper focuses on the contents and implications of the principle of social defence elaborated by the adherents of the Italian positive school of criminal law and on its criticism by the advocates of a more classical approach. This school was the cornerstone of a new criminological theory radically different from penal classicism, and its corollaries of denial of free will, social dangerousness, preventive means of social defence, the individualization of punishment and the extension of judicial powers are analysed. The penal code project drafted by Enrico Ferri in 1921 and never enacted is examined as a model of positivist codification. Finally, the unresolved constitutional tensions raised by the principle of social defence are considered.