Beyond the romantic image of the outlaw of old western movies, where the hero was a bandit and the sheriff, the law enforcement officer was a criminal in the pay of railroad officials, or pirates, who lived free at sea, sailing without any master, going where they wanted and doing what they wanted when they wanted, that of the outlaw is in reality a historical figure, or rather, a very complicated juridical status, typical of a world that has not existed for at least 2 centuries.
In the modern / contemporary world, the “ outlaws "No longer exist, or at least, not in the original sense of the term, since a series of principles have established themselves in the modern / contemporary world for which it is no longer possible (unless one lives in a criminal regime or in any case breaking the law of a civilized country) placing an individual outside the law.
But who are the outlaws? and why don't they exist anymore?
Originally by outlaw was meant not those who acted outside the law and legality, but those who were placed outside the law, being marked as an outlaw was a sort of " excommunication "Under the legal system, being out of the law meant no longer having any legal rights and anyone could do what he wanted with an outlaw, including kill him and enslave him.
This ancient legal concept, widely used in the modern age especially in relation to piracy, begins to fade with the Peace of Westphalia , at the end of the Thirty Years' War.
With Westfalia begins an important process of transformation of the legal systems of the states, of the states themselves and of the relations between them.
Simply put, with the Peace of Westphalia, a series of interconnected legal principles are affirmed in Europe.
The first of these principles is the definition of the nation state, which is no longer a set of lands controlled by a sovereign who has the power to dispose of those lands and those who live there at will, becoming instead an area, an area, very precise, delimited by well-defined borders, within the terms of which certain laws and certain power relations between sovereign, representatives of the state, institutions and inhabitants apply.
These artificial confinu that delimit nation states, imply the mutual recognition of those borders by the various nations and consequently impose the limits of the power of sovereigns and their courts, and is reflected on the population of those areas, but also on the balance of forces within those boundaries and above all on the laws and the concept of the outlaw.
In a world where nations recognize each other, opening up to the theoretical concept that a nation exists only if recognized by other nations, the laws of those nations are valid within the borders of those nations, and in those borders they have universal value. A first embryonic form of the concept of universality of laws and rights begins to assert itself, but we will arrive at this calmly.
When the laws of a state have universal value, it is no longer possible, in an ordered system, to place someone outside the law, or at least, in theory it is so, in practice we would have to wait a long time to see this abandoned. barbaric and primitive practice.
The concept of outlaw and the attached legal status continue to exist and survive in the "new world ", In the general context of the fight against piracy, while it tends to disappear in continental Europe, where " land pirates " or if you prefer the bandits, they begin to fail.
The bands of marauders who for centuries had raged in the countryside and plundered the European villages, were made up of military companies, militias and soldiers who, in time of war served the sovereigns in war, but in times of peace, dedicated themselves to other types of activities. However, this type of activity begins to fade after the Peace of Westphalia, as one of the effects of the peace is the reorganization of European armies.
Until the Thirty Years War there were no permanent armies, the soldiers were mostly mercenaries who, from time to time, chose which side to stand and alongside whom to fight, officially moved by various oaths, but also and above all by the promise of greater rewards expressed in land and money.
After Westphalia the concept of a standing army begins to assert itself in the European nation states, and then, as already happened in Roman times with the reform of Mario, the creation of state armies, permanent, formed by wage professionals and no longer by mercenaries at the highest bidder's money.
The absence, or rather, the reduction of warlords and marauders, from continental Europe, contributed to dropping into oblivion, at least in Europe, the status of outlaw, that is, of an individual placed outside the law. / P>
During the French Revolution , or rather, after the French Revolution, so to speak, between the revolution and the "period of terror" ( forgive the simplification ), debated extensively on the issue of the outlaw and came to propose the juridical excommunication of the enemies of the revolution, more simply said, it was proposed to outlaw the supporters of the ancient regime, however, this possibility was then discarded in favor of softer positions that included the confiscation of assets and the application of death sentences.
The same problem arose about a century and a half later, on the occasion of the Nuremberg trials , where, among the options considered and then discarded, there was the possibility of revoking the legal status of Nazi criminals, however, on this occasion, a vague principle of "moral superiority" was affirmed according to which, to outlaw and like the animals the Nazi criminals, it was no different from what had been done by the Nazi criminals in the concentration and extermination camps, and therefore it fell back on the application of new laws created ad hoc, built on the basis of the principle of “ hostis humani generis " (enemy of mankind) , and the laws against piracy, to define what would become, from that moment on, "crimes against humanity".
In historical terms, the status of “ outlawed "In Europe it officially ceased to exist with the Peace of Westphalia, however, from the second half of the eighteenth century, a new continental actor would appear on the global scene, this actor was today's United States of America, where, the status of Outside the law it continued to exist at least until the beginning of the twentieth century, in this case in the rural areas of the " wild wes t ".
In Europe, however, the status of outlaw, as a synonym of excommunication from the legal system and loss of any form of right, appears sporadically, in the first half of the twentieth century in the Nazi-Fascist regimes and in the Soviet Union, where, " enemies ”Of the state and the party, were deprived of all rights, and the same would happen, in the twentieth and nineteenth centuries, in every dictatorial regime.
To learn more
J.Elster, Closing the accounts. Justice in political transitions, 2008, publisher il Mulino