Interpretazione e analogia nel giudizio penale. Tra ius ed estetica?
DI AMILCARE D’ANDREA
ABSTRACT – The analysis of this paper aims to highlight the positions in the history of the interpretation of law (between the philosophy of language, doctrine and jurisprudence) and the crisis of the Italian principle of “determinatezza-tassatività of criminal offences”. This principle can also have a source in the simple change of history, of the contexts and thoughts. Responsibility for the legal control of changes does not exempt the politician-legislator. In the analysis of criminal law, the reflection that emerges concerns the limit relationship between analogy, interpretation and new norm. After an initial historical reconstruction, with particular attention to the 20th century, it can be seen how the interpreter’s activity is overwhelmed by an ever faster and more vigorous evolution, following “judicial Europeanism” and globalization. How much and how this activity affects the reform work of the politician-legislator, can be found in a pleasant digression on the questions in the comparison between aesthetics and law.
KEYWORDS – criminal law – interpretation in law – legal hermeneutics – constitutionalism – aesthetics – philosophy of law