Riflessioni critiche sulla legislazione penale italiana contro il discorso d’odio nel sistema multilivello : la prospettiva del paradigma del social working of law

This contribution aims at critically reflecting on the content and effectiveness of the Italian criminal legislation against certain cases of hate speech, which are punished by the Italian criminal law by applying the aggravating circumstance provided for by art. 604-ter of the Italian Criminal Code (before it, by article 3 of Law 205/93) to insult (until its decriminalisation in 2016), defamation and threat. On the one side, in Italy it has been noted that a progressive erosion of the offenses subject to criminal sanctions, less harsh criminal sanctions and a low rate of judicial application of the aggravated circumstance in these cases of hate speech have occurred; on the other side, an extensive interpretation of the antidiscrimination law by civil courts and a greater engagement of such social actors as organisations in monitoring and denouncing cases of hate speech have taken place in most recent years. An analysis of the legislation within the paradigm of the “social working of law”, elaborated by John Griffiths, leads to the conclusion that the criminal law against hate speech exerts special and general effects, rather than merely symbolic effects at the shop floor.