La giustizia penale nell’età comunale fra utilitas, veritas e mala fama. La ridefinizione dei caratteri del reo e del ruolo della persona offesa nel passaggio dal penale pattizio al modello inquisitorio

In the Italian municipalities of the twelfth century, the criminal law does not represent a public law system but takes on a civil declination: the crime is a private matter that is resolved on the basis of a negotiation and agreement between the parties and the families involved, according to a compensation model based on to utility. The municipal pact criminal justice is overcome by the affirmation of the principle Rei publicae interest, ne delicta remaneant impunita which - contained in the Inauditum and Ut famae decrees of Innocent III - will claim in the thirteenth century the political and religious role of a papal iurisdictio that wants to control and correct the faithful. Coercere et corripere has its core in the crime understood as a sin and supports the idea of an expiation penalty, in evident discontinuity with the utilitarian reasons of a compensatory and restorative penalty, left to the autonomy of the parties. If the settlement guaranteed the utility of the parties involved in the crime, the union between the Iustitia and the Iurisdictio shifts the penalty towards a metaphysical dimension that will be accentuated by the advent of the inquisitorial process. The trial as a search for veritas will leverage the basic mechanism of the inquisitio, fame, signaling a moment of re-definition of the purposes of criminal justice that is no longer limited to punishing crimes, but aims to arrive at an ethical and moral truth, sanctioning intention and inner guilt, rather than action and material damage.