Adulterium e Stuprum. Declinazioni della giustizia nella criminalistica moderna (secc. XVI-XVII)

The considered period (XVI century and the first half of XVII century) shows itself as a period of transition between Middle Ages and beginning Modernity. That is the period of religious exasperation, beginning by a yearning for moral regeneration (Savonarola) and ending by the failure of any universal restoration (the Peace of Westphalia). In these 150 years, numerous religious political and cultural transformations influence on the right. In order to analyze such processes, the delicta carnis appear like a privileged point of observation: never like then, they assume a central position in the invectives of the moralists, in the theological controversy and, above all, in the strategies of regulation put into effect with legal instruments. Adulterium and stuprum, analogous crimes since the original justinianian treatment, are revealed particularly adapted in order to study the problem: they constitute crimina gravia but, not belonging to the empyrean of the atrocissima, they offer cracking of the criminal justice far away from how much suggest the hypotheses more known (heresy, lese-majesty). The search is oriented mainly to the legal thought, expressed from the increasing criminalist theories. But we don’t limit ourselves to the examination of the practicæ: decisiones, consilia and legislation integrates the picture of the sources (moreover enriched from the theological and political reflection). A deep contradictoriness, irreducible to the evolutionist paradigm emerges: of course the affirmation of the modern State is obvious, but the search puts in evidence “the horizontal” persistence that still characterizes the justice. In this sense pluralism of jurisdictions, accusatory elements, negotiated justice and personal revenge have to fit in : all these factors that cohabit with the expansion of the secular competences, the increase of the inquisitio, the centrality of the judge. In this complex picture, the arbitrium carries out a re-balance role, in the optical of a dynamic but not anarchical ordering. In this co-existence of opposite vectors (State/community; secular hole/ecclesiastical hole; external hole/inner hole) the justice appears sometimes vertical disciplining, imposition of obedience; other times it shows its ancient aim of reddere cuisque suum. The first key of reading adopted from the search is that one of the “giustiziabilità”. Which is the idea of justice of this age? Where and how does this justice come true? How jurists do set themselves in comparison with these metamorphoses? The second perspective is that one of the “positive secularization” or the “spiritualization of the right”: centripetal dynamics - manifesting also in the legislative increment - is come true by the transfer to the State of knowledge, competences and procedures once pertaining to the Church, either as judge of the external hole or as judge of the inner hole. Never like in this age, the knowledge of canon law and of moral theology are absorbed by the lay powers. The search puts in evidence this process with numerous examples: the sexual matter appears particularly useful to such aim. Meantime, the canonical ordering does not remain inert: it knows some important innovations, supported by the two XVI century’s councils: even if in less obvious way, a mutual learning between the two rights can be recognized also, in the optical of the entaglement. The “confessionalisation” constitutes an ulterior point of observation: wedding, ecclesiastical justice, private penance and vengeance are only some of the topics that divide the two spirits of the Christianity. On these topics, the dialogue between jurists and theologians becomes more intense: the contribution of the School of Salamanca (composed from illustrious theologians, but also from canonists and legists) stands out. But, in the optical of the modernization and State-growth, the role of the Lutheran theology seems decisive. Some authors as Farinacci and Carpzov - expert criminologists of theology and politics - perfectly incarnate the spirit of the time. Through seven chapters, the search brings to light substantial and procedural profiles, interrogating itself on the competence, on the trial-like scansions, on the pains, on the alternatives to the criminal justice.