Razionalità legislativa e intenzione del legislatore nella giurisprudenza della Corte di Cassazione penale

The paper focuses in particular on the use of the argument of legislative intent in the decisions of the Italian Criminal Court of Cassation, with the aim of analysing how the legislator and its presumed and controversial rationality are conceived. The argument of legislative intent is characterised by abstract and ideal elements that can be traced back to various theoretical models of legislative rationality, such as instrumental and linguistic rationality. Some models of legislative rationality developed in legal philosophy are compared with the assumption of a rational legislator in judicial reasoning. With some exceptions, where the intention of the legislator is conceived by the deciding body, such intention is normally the result of constructions of judicial origin. The paradigm of the rational legislator appears intrinsically linked to the justificatory dimension of law, both in terms of the reasoning behind laws and of the reasoning and justification behind judicial decisions.