Droit de punir et construction d'une citoyenneté vertueuse dans la philosophie de la peine de Filangieri

In this article I stress the importance of Filangieri’s thought, putting in relief, at the same time, the contradictions that run through it. Filangieri starts from a Lockean model: in the state of nature, every man has the right to punish other men. With the creation of civil society, this right shall be transferred to the sovereign. The older of sovereignty is, in any case, the people, even though that right may be exercised by an individual. In this way, the Neapolitan thinker not only affirms the principle according to which political power must necessarily be founded on the consent of the citizens, but also build ≪ a republican model of criminal procedure, based on private prosecution and the trial by jury, according to the criminal process in force in Ancient Rome and modern Great Britain ≫: the jury, in fact, represents the people and their right to punish. After all, Filangieri expressed a clear and original preference for the accusatory system, defending also individual rights. With regard to the function of punishment, the Neapolitan thinker argues that punishment should have a purpose of crime prevention, though not lacking in his doctrine some instances of lawful correction and retributivism : this is in stark contrast to the liberal philosophy that inspires his theory of criminal law. More generally, the same pedagogical intention to build a virtuous citizenship clashes with the liberal principles of his philosophy of punishment, that attract admiration by a player such as Benjamin Constant.