Occasioni di razionalità nel diritto penale. Fiducia nell’“assolo della legge” o nel “giudice compositore”?

The essay is inspired by a research project about the concept of rationality in law/rationality and law, and deals with how criminal law forces itself to contain drifts of irrationality as in committing crime as in imposing punishment. By a ‘genealogic’ approach, the author analyzes the circumstances under which the rationality principle is appeared in the controversial history of criminal law, and observes two main areas whereas the clash rationality/irrationality became hardier. First, much of the criminal law is characterized by the conflict between formalistic and antiformalistic perspective, that is by the question how space is to be accorded to judicial power in the production of the criminal rules. Second, the law enforcement raises the problem about how many and which are the real goals of the punishment, and if the punishment is really able to achieve these goals, in according to a instrumental vision of the penal sanction like a way to fulfil social aims. This article discusses the problematic features of legislative and judicial deliberation regarding the current compliance to the civil law principle of the ‘statutory reserve’. Many extraneous considerations, economic too, often enter in, and certain inherent features of these bodies make them especially problematic. Probably, the criminal law fate is to accept that its instrumental rationality is bounded, and it’s important for the legislator and the judge acknowledge these imperfections, and they adopt a results orientation instilled by the humility of ignorance, due to serious effect for the life of the persons involved in the criminal justice system decisions.