Hermeneutics in Sentencing and the Social Effectiveness of Criminal Norms

Abstract

The issue addressed in this study reflects a longstanding concern regarding the degree of social effectiveness of criminal convictions, particularly in relation to the achievement of the purposes of punishment (preventive and retributive), based on the reasoning provided by the adjudicator. From this perspective, legal hermeneutics—drawing on the converging contributions of Emilio Betti and Hans-Georg Gadamer—may serve as a valuable tool for determining the most appropriate sentence in each specific case, thereby promoting satisfaction both for the convicted individual and for society with respect to the type and extent of the penalty imposed. The central research question thus seeks to determine whether it is possible to refine criminal legal positivism in the context of sentencing, in order to achieve greater social effectiveness of criminal judgments, through the application of hermeneutical criteria and a deeper understanding of the interpreter’s conditions. The initial hypothesis is that it is indeed possible to improve criminal sentencing decisions without abandoning the positivist framework, by imposing penalties that are more coherent and consistent with the specific case, both in terms of alignment with the legal system and in achieving greater fairness in the individualization of punishment.