Integrity at sentencing and the problem of Judicial discretion on a dworkinian reading

Abstract

Ronald Dworkin wrote little or nothing about the fundamental political issues of crime and punishment. Nevertheless, it is possible to extrapolate his ideas to the field of penology. This article has offered a Dworkinian reading of issues related to punishment and its adjudication. Our interest was in two particular aspects of Dworkin's work: a) his criticism of judicial discretion, which means limited freedom for judges at sentencing; and b) the law as integrity thesis, that we contend to be useful in penology, both in the legislative creation of public rules about sentencing (legislative principle), and in adjudication (adjudicative principle). Integrity of law within the most relevant Western legal traditions is examined from a bifurcated approach: in civil law jurisdictions, with strong positivist culture, the legislative principle is prominent; whereas in common law jurisdictions, statutory provisions have less relevance, therefore Law is developed gradually by courts. We attempted to examine, from a Dworkinian perspective, the sentencing schemes typically at place in civil law countries, based on statutes, and also the sentencing guidelines found in countries such as the USA, England and Wales. In the concluding part, we have proposed some reconciliation, aiming at the promotion of greater integrity at sentencing.