Integrity at sentencing and the issue of judicial discretion from a Dworkinian perspective

Abstract

Ronald Dworkin wrote nothing or very little about the fundamental political issues of crime and punishment. This article proposes a Dworkinian reading of such issues. It focuses on two aspects of Dworkin’s work: 1) his criticism of judicial discretion, and 2) his “law as integrity” theory (legislative and adjudicative principle). Integrity of Law in Western legal traditions is examined from a bifurcated approach: on the one hand, in civil law jurisdictions, with a strong culture of legal positivism, the legislative principle is prominent; on the other hand, in common law jurisdictions, statutory provisions are less relevant, and other sources of law prevail (e.g., case law). Building upon Dworkin’s writings, we examine statute-oriented, sentencing models from civil law jurisdictions, and the sentencing guidelines systems from the U.S. and England and Wales. Despite their differences, we set out to find some convergence between both models, aiming at promoting greater integrity at sentencing.