BETWEEN SUBSUMPTION AND PRINCIPLES

RATIONALITY AND JUDICIAL HERMENEUTIC CONTROL IN CRIMINAL LAW

Abstract

The principle of judicial discretion is a controversial subject in Law. If understood not as mere judicial arbitrariness, but rather as a duty strictly entrusted to the judge when the legal rule fails to achieve a sufficiently adequate correlation with the factual situation, it may be said that such discretion is indispensable to judicial activity. In this context, judicial decisions must rely on proper reasoning and justification, following a rigorous assessment of the applicable law and the integration of knowledge that goes beyond the mere wording of the statute. The purpose of this article is to examine, in light of modern constitutionalist theories, the role of the judge in this process; the complex task of integrating criminal law — with its technical and empirical limitations — with the concrete case, as well as the limits of interpretive power. In doing so, the article seeks to provide a more realistic understanding of the challenges inherent in judicial activity, indicating paths that do not dispense with reason, while proposing criteria capable of ensuring equity and the preservation of fundamental rights within criminal proceedings.