The judge and the criminal law
1. The system of sources. The primacy of the general and abstract norm
The judge-law report, to which the monographic issue of Justice Issue 4/2016 is dedicated  , is a question that concerns the structure of the legal system . If it is discussed much, the language used lends itself to convey different meanings and ideological positions. The risk of misunderstanding is high  : what does it mean to say who claims or denies a creative role of the judge?
The formal theory of law may say that jurisprudence is a source in the abstract sense of pure Kelsen's theory : it has its place in the stepped construction ( Stufenbau ) of the legal system. Judicial decisions (jurisprudence) are a form of living law, says an objective description of how legal systems work.
The jurisprudential formant has no formal legal value, says a descriptive hermeneutics of civil law systems (like ours) . In relation to the law, judicial decisions pose problems of validity or legitimacy  .
The controversy against jurisprudential creationism , led by Luigi Ferrajoli, is in defense of a system of sources of law that is based on the principle of legality, both as a legal reserve, expression of democratic power , and above all as a form of general law and abstract: the principle of legality as a " principle constitutive of the legal syntax of the rule of law, regardless of the level and content of the rules in which it is articulated "  .
Without the general and abstract norm there can be no certainty of the law: " in the principle of legality there is the recognition of the equal moral dignity of all men "  . Even in the degraded context of the era in which Piero Calamandrei wrote his profession of faith in law, the general and abstract norm, the logical form of law, with its imperfect rationality ( suboptimal  ) can be considered « with serious the only barrier opposing the applicants ' arbitrariness  . The certainty as specific ethicality of the right  , the legality as a guarantee of certainty of action.
It concerns the system of sources the reaffirmation of the relationships (and of the difference) between legislation and jurisdiction made by the Constitutional Court in sentence no. 230 of 2012  : the question of constitutional legitimacy of art. 673 of the Code of Criminal Procedure, in the part in which it does not provide for the revocation of the sentence of conviction in case of change in case law (decision of the Joint Sections) which excludes that a certain type of fact is foreseen as a crime. This question had been raised with reference to the articles 3, 13, 25 comma 2 °, 27 comma 3 °, 117 comma 1. The sentence reaffirms in its entirety the model of legality founded on the reserve of law, against an approach that believed to be able to infer from the jurisprudence of Strasbourg the retroactivity of the favorable jurisprudential change. Also the orientation of the united Sections has " essentially persuasive " value, and it can be disregarded "at any time and by any judge of the Republic, albeit with the burden of adequate motivation ". The same Sections can " find themselves having to review their positions "; I am inside, and not above, the unfolding of the confrontation on the interpretations of the law.
The referral order posed a problem of equality of treatment against corrective changes ( in bonam partem) of living law in jurisprudence. A problem of justice, remained unsolved. Within the horizon of the principle of legality, it challenges the legislator. Rejecting the claim to bind the execution judge to the dictum rendered by the Sections joined in another trial, the Constitutional Court defended the legal syntax of the rule of law , the one that, in the Italian Constitution, expresses itself in the subjection of the judge only to the law (Article 101 of the Constitution) and, with regard to criminal law, in a particularly stringent version of the principle of legality  (principle of accuracy and precision).
2. Hermeneutics and interpreters
2.1. The speeches that talk about the creativity of the judge concern the problem of interpretation. The creative interpretation of the judge is not an oxymoron : it is the title of a passionate contribution from a judge in the issue of Justice Question  : " the judge is not a mere linguist. The normativity predicate belongs not to the text but to its meaning: norms are not the object, but rather the product of interpretation »; It would therefore be " empirically false that the judge does not create law ".
Paolo Grossi, great historian of law and critic of the legal mythologies of modernity, in a recent speech to young magistrates  spoke of shifting the axis of the legal system from the legislator to the interpreter : the text does not have a self-sufficient reality, but it is only complete in interpretation. It does not really use the language of creativity, "because, in my vision, law does not create it strictly, not even the legislator, let alone the judge ": the right is considered a question of inventio , a search to find something. The law historian emphasizes " the genetic link between society and law, its intimate historicity "; look with sympathy «alien systems from conceiving the juridically intrinsically bound to political power ". In assigning a prominent position to the interpreters, and in particular to the ordinary judge, he specifies that " a different consideration must be done for the criminal judge ", having in criminal matters a special importance the reserve of law .