Criminal responsibility in the Italian colonies: The Eritrean case (Nineteenth– Twentieth Centuries)

This chapter investigates the influence of the Positivist School of Criminal Law in the evaluation of mental capacity in the Italian colonies, with a specific focus on Eritrea. This area, as well as the wider colonial situation, was a privileged ground for developing new models of punishment between the nineteenth and twentieth centuries. Even though it is overly simplistic to see the authoritarian traces of criminal justice in Eritrea merely as a distortion of the positivist thesis, acknowledging that Italian Colonialism itself is a complex phenomenon, it is nevertheless true that many principles of the Positivist School were adopted and used by colonialists for their own ends. This chapter outlines the ways in which the liberal Zandarelli Code, adopted in Italy in 1889, was perceived to be unsuitable for use in the Italian colonies. This supposed unsuitability, it is argued, rests not only on the difficulty of imposing a written law where customary law had previously been dominant, but also on the supposed impossibility of using legal concepts and abstract categories, imagined for a superior society for a colonised people, frequently represented as belonging to inferior races with savage and immoral customs.