Garantias e regras interpretativas: proposta de um modelo garantista de interpretação jurídico-penal

Abstract

This study deals with the interpretation of criminal law from a normative perspective. The act of interpreting and applying criminal law has limitations deriving from determinations that the guarantee of legality attributes to the language of legal writings. The observance of these limitations is a necessary condition for the achievement of the paradigm of lawfully limited power. Based on bibliographical research, this study considers the restrictions imposed by the constitutional rule of legality on the enforcer of criminal law, with a broader response to the meta-interpretative problem. Therefore, the aim was to link the purposes of the criminal justice system—building on readings from Luigi Ferrajoli’s theoretical framework—to the way judges should interpret and apply criminal laws. The key to this research was understanding that the purposes of the criminal justice system provide normative criteria for assessing which interpretive approach best fits a liberal and democratic project of criminal justice. Once highlighted, these criteria are to be placed within the basic structure of a normative model of criminal law interpretation suitable to control the judicial activity of interpretative justification. This study thus concludes that the normative criteria gathered from an analysis of the criminal justice system’s purpose can be transformed into guarantees and interpretative rules, intended to restrict the admissible interpretative arguments in the application of criminal law. The normative model suggested in this study was not narrowed to a purely methodological approach as a scientific conception aimed to control textual understanding was considered useless. The focus was rather on a discursive conception that deals with the justification of interpretative judgments, in which participants present interpretative arguments to justify a certain meaning to the legal text. A normative doctrine of criminal law interpretation is then entrusted to spell out the rules to be observed so that the interpretative justification can be responsive to the purposes of the criminal justice system.