Abstract

Law making as a procedure of rational decision-making deserves to become a preferential research field in criminal justice policy. The evolution of criminal legislation throughout the last decades shows how strongly influenced legislative decisions are by opportunistic, populist and shortsighted public demands or political interests. Any intention to build patterns of rational decision law making in criminal justice policy requires a deep knowledge of the sociological and legal process that leads to take legislative decisions, and of the social actors and institutions that are decisive along the way. The differentiation of the legislative process into three stages, pre-legislative, parliamentarian, and evaluative, each one having various internal divisions, has already proved its analytical capability. Now, we are able to build a pattern of rational criminal law making. The current paper brings forward a revised version of a model first proposed by Atienza that allows us to identify five standards of rationality: ethical, teleological, pragmatic, systematic and linguistic, as well as a transversal dimension. All these components should get access in a differentiated way to the varied phases and stages of the legislative process by means of political actors and policy makers. The paper subsequently carries out a more precise analysis of the principles building Ethical rationality in criminal law making, and of the criterion for solving discrepancies about the content of further rationalities. A critical analysis of the main topics of procedural and substantive constitutional review of criminal law making constitutes the final section of the paper.