Individualization of Punishment and the Rule of Law: Reshaping Legality in the United States and Europe between the 19th and the 20th Century

Abstract

This article focuses on the individualization of punishment and the indeterminate sentence between the 19 and 20 century and their impact on the principle of legality in Europe and the United States. The preventive and rehabilitative purposes of the criminological science were shared on both side of the Atlantic, but were interpreted and applied in different manners, depending on the different legal order shaped by the American rule of law and the European Rechtsstaat. While the U.S. system accepted the indeterminate punishment introducing a clearcut distinction between the verdict and the sentence, as a compromise not to nullify the nullum crimen by individualizing the treatment of the guilty offender, the European penal codes based on a strict legality introduced the dual-track system as a way to reconcile repression and prevention. Both the biphasic trial and the security measures affected the principle of legality and gave the balance between individual safeguards and social security new characteristics, showing the possibility to mould the rule of law according to the historical, cultural and political context.