TERRORISM AND CRIMINAL LAW: THE DREAM OF PREVENTION, THE NIGHTMARE OF THE RULE OF LAW

Terrorism stands at the evolutionary peek of the expansion of Western criminal law systems. This evolution contradicts many of the constitutional foundations of Western criminal law, to the extent that a real "criminal law" for enemies appears on the near horizon of penal legislation. The basic argument here is the idea that criminal law is an effective instrument to fight against terrorism. Yet a thorough analysis reveals that this overstates the preventive capacity of the penal system. To the contrary, given the communication strategy embodied in terrorism, a penal overreaction could be quite dysfunctional for the objective of fighting terrorism: in particular, and notwithstanding the fact that it does not provide a real solution in preventive terms, it may cause a contamination effect that could modify the constitutional foundations of the overall penal law system.