Ki lling the «human hope». Violence as a constitutive element of procured abortion in 19th-century Italian criminal science debates

Abstract

The essay reconstructs the debate around legal framework, limits and constitutive elements of procured abortion, that animated some of the protagonists of 19th-century Italian criminal science – from Carrara to Lucchini, passing through Ambrosoli, Vigliani, Pessina, Puglia, and without neglecting lombrosian positivists such as Balestrini and legal practitioners such as Calogero or Mura Succo – in particular during those years of great cultural ferment that led from Italian national unification to the enactment of the Zanardelli’s Criminal Code (1889). In this debate, violence seems to play a role of primary importance, a true luminous prism in which the incriminating offence of procured abortion is refracted. Violence, in fact, was understood in its “legal form” as a constitutive element of the abortive crime, defining its character as a crime of violence against an identified object (person-fate, family, female corporeity, society, maternity). Surprisingly, a significant portion of liberal-age criminal law – especially that of a more progressive and realistic streak, less influenced by Christian dogmatism and the hypocrisy of bourgeois morality, and more aware of the perverse game played by public opinion – seems to us to perceive, precisely in violence, the founding character of procured abortion as an unlawful act, considering the absence of violence (annulled by the woman’s free and voluntary consent) as the justification explaining the absence of the criminal conduct itself and, consequently, its criminal prosecution.