Is criminal law “special”? A defense of a stricter scrutiny of judicial review of legislation in criminal matters.

The question of the legitimacy in a democratic society of the judicial review of legislation has been widely discussed in the constitutional law theory. Is this question to answer differently in the criminal law context? Is, in other words, criminal law special? And in what terms? The paper will try to defend the thesis that criminal law is indeed special and calls for a stricter scrutiny of legislation. The fundamental rights in this context tend to find no representation in the political arena and have then much more difficulties to find their way through democratic representation. It is then understandable that, especially in this context, constitutions are much more detailed than in other areas of law and constitutional courts adopt a stricter scrutiny.

Proportionality of penalties as a fundamental right?

Proportionality in criminal law is usually discussed in relationship to criminalization or as a criterion for the judicial determination of the penalty. This paper asks to what extent proportionality of the penalty can also work as an individual fundamental (or human) right, based on domestic Constitutions or international human rights instruments.
As a fundamental right, proportionality of penalties operates in two directions. On the one hand, it is a limit to judicial discretion in the determination of the penalty. On the other hand, it can be conceived as a limit to legislative discretion in setting the appropriate sentencing framework for an offence. Thus, criminal laws providing for disproportionate sentencing frameworks could be declared void or held incompatible with human rights standards, in as far as they can lead to the imposition of such sentences.
These two basic functions are discussed in the light of the most recent case law of the Italian Constitutional Court.

The Elusive Virtue of Congruence

Congruence is the requirement that the law should be applied in accordance with its stated content. Congruence is essential to the rule of law. Yet assessing whether any given legal order exhibits this virtud is an extremely difficult task.
A particular legal decision is congruent if it is a correct application of the law to facts that have been correctly determined. Moreover, the scale of error matters; the larger the proportion of erroneous decisions in a given society, the less the society it is governed by law.
Thus, in order to assess whether a particular decision is congruent, an observer needs to have a better understanding of the facts and the law than whoever made the decision; and to assess whether the legal order exhibits the virtue of congruence, the observer needs to have an enormous amount of information about it.
The paper will conclude with some reflections on the relevance of the elusiveness of congruence for the function that the rule of law is supposed to serve.