This essay starts from the consideration that the judge’s operation of quantifying the punishment to be meted out when the accused’s responsibility has been established is only apparently simple and readily solved. When conducted correctly, it is actually complex, because it presumes a moment when the judge knows and understands everything necessary to do with the criminal fact and the personality of its perpetrator. The right method for governing this phase is identified here as the so-called "sympathetic process". Referring to the philosophical theories of sympathy expounded by Adam Smith and by Max Scheler, the article highlights how the sympathetic approach enables the judge to be aware, since it offers him the means to open up to others and to feel an ideal empathic participation in the situations they experience. The judge cannot disregard this approach when making the effort to calibrate society’s punitive response to match the real degree of conflict with right and proper behaviour on the part of the accused.
Keywords: Guilty - Judge - Trial - Punishment - Sympathetic process