The judicial traditionalization of modern penal rationality: An ontological hurdle to the identity-based evolution of the criminal justice system

From a phenomenological approach to sentencing, this text explores the emergence of ontological obstacles to the evolution of the criminal justice system. The thesis is based on Max Weber’s contributions on the different modes of orientation likely to guide social activity, and thus distinguishes between the being of the judge who, in his or her sentencing decisions, is still rationally guided by aims and values, and the being of the judge who is rather carried along by routines and habits. If he or she still talks about objectives (for example, deterrence) or still seems to adhere to conviction in some values of justice (for example, those of retribution or denunciation), it is because the system’s procedure requires it and not because the social actor believes in them. In this context, a new kind of obstacle to the evolution of the criminal justice system emerges, an obstacle that is more ontological in nature than cognitive, calling into question a way of being before any way of thinking and way of doing.