Futile otherness. religion and culture vs. Futile motives in criminal law

Melisa Liana Vazquez

Primo

Writing – Original Draft Preparation

2022-01-01

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Abstract

Within Italian criminal law, the category of motive entitled motivi futili, or futile motives, is used as an evaluation standard in determining an increase in the severity of a penalty for a crime committed, not unlike the designation ‘aggravated’ in common law systems. An application of the penalty means that the motive for a crime is deemed so unreasonable, illogical, superficial, without sense that it becomes especially abhorrent and therefore additionally punished. Courts rule on what internal reason or lack of reason drove the defendant to commit the crime. However, secular criminal law operates from the premise that it is tasked with evaluating and ruling on ‘facts,’ not on the forum internum of individuals. Thus, an interpretive evaluation of motive, which lies squarely in the domain of the internal forum, is not really an undertaking that properly belongs to law. Nevertheless, it is impossible to determine just punishment for crimes without an evaluation of the degree of the crime. The qualification of degree, at least in Western legal systems, depends on an evaluation of motive, and complicating matters, intent. The issue of culture is also inextricably tied to questions of motive and intent in intricate ways that are frequently the cause of further interpretative confusions, including the role of religion, understood anthropologically, within cultural evaluations. I will argue that the category of futile motives offers a valuable keyhole to viewing cognitive struggles inherent to the evaluation of crimes, and motives more generally, in the Italian legal context in ways that are, however, globally relevant. The adjudication of a subject’s motives as ‘futile’ demonstrates how specific categorical schemes shaped by cognitive assumptions betray an alleged universalism that prevents law from maintaining legitimacy before its subjects. ‘Futile’ motives sound an alarm demanding we pay more critical attention to the relationships among facts, culture, and the law’s aspirations towards a representative justice. Intercultural translation offers an alternative theoretical and practical approach that could lead to better solutions.