•  
  •  
 

Cardozo Law Review

Gunther Teubner

Abstract

When I speak about the cupola, it is not Brunelleschi's architectural masterpiece crowning the Florentine duomo that appears before my eyes. Rather, I see the ugly architecture of organized crime, the brutal supersecret "cupola" on top of the Mafia's hierarchy which overshadows social life in Italy. Does this cupola exist or not? Over the recent years, the Mafia's cupola has been the object of a bitter struggle between Italian judges. While the lower courts have been sending numerous mafiosi to prison because they were part of the invisible cupola controlling "tutti i grandi delitti," the court of the next instance has stubbornly denied the cupola's sheer existence and has set the Godfathers free. In February 1992, in a landmark decision, la Corte di Cassazione for the first time acknowledged the cupola's legal existence. Is the cupola a phantom-a fantasy product of paranoic judges? Or is it a social reality that lawyers have to face if they want to understand organized crime and macrocriminality? In my view it is neither one nor the other; neither lofty legal fiction nor hard social reality "out there." The cupola is an artificial construct of legal architecture that serves one overriding purpose: it allows the punishment of individuals whenever certain facts can be proven that indicate their membership in this "organization." Whoever is a member of the cupola, is as such responsible for the mafia's crimes. The legal construction of the cupola makes the causal attribution of individual crimes superfluous by replacing it with collective attribution. It transforms individual liability into collective liability.

Disciplines

Criminal Law | Criminal Procedure | International Law | Labor and Employment Law | Law

Download

Share

COinS