Crisis of the nomological model, expectation of diligence and criminally relevant conduct. Comparative aspects on the definition of punishable fault

Document Type: Original Article


Full Professor of European Union Law at the Fletcher School-Tufts University


Under what conditions or based on which evaluation criteria a conduct that offends or does not prevent the injury of fundamental legal assets such as life and physical integrity of the person can be said not only "harmful" but also "negligent" for the criminal law? The present survey starts from a question of enormous importance that seeks the characters of conceptual categories related to the objective element of the culpable offense (the relative "typical fact"), on the method of concretizing the "duty" of diligence "(which constitutes the normative heart of this element) and the criteria of judgment on the basis of which it can be considered unnoticed. The study is based on the experience gained in both countries in the areas of medical responsibility and prevention of occupational risks (health and safety in the workplace), contexts in which the current "crisis" of criminal code is particularly evident."Nomological model", i.e. the causal explanation method of neo-positivist imprint and the reconstructive criterion of the precautionary norms based on "scientific laws". In both dimensions of the judgment on the typicality of the fact, the obfuscation of the image of science on which the theory of culpable offense was built during the twentieth century has already led contemporary criminal law to reevaluate its peculiar argumentative and evaluative approach, abandoning the inferential-nomological-deductive demonstrative scheme and questioning the method by which to define the concrete margins of the "allowed risk".