scholarly journals The Philosophical Vision of Legal Punishment

2022 ◽  
Author(s):  
Virginia Zaharia ◽  

The concept of punishment represents one of the most difficult legal issues that are related to the concept of human freedom and responsibility. Since Antiquity, the brilliant minds of humanity contemplated about the sense of punishment and the function of this institution. Each epoch analyses this concept from different aspects and some of them are reflected in the actual legislation. The most important principles of contemporary criminal law were expounded by the Ancient, Modern and Contemporary philosophers. The field of research of this article is the philosophy of punishment of criminal law. In this study, we have applied the method of historical research of the proposed topic, which gives us the opportunity to analyze the development of criminal punishment and its goals from a historical perspective. In this paper, we aimed to determine the philosophical base of the legal punishment that legitimizes the application of sanctions to the person who committed the crime. We established the importance of the theories developed by brilliant thinkers for the contemporary concept of penal retribution and legal regulation of this institution. This theme generates several discussions that are formed in the process of comparison and debating of the ideas of influential philosophers regarding the purpose of criminal punishment. Therefore, we consider that the analysis of the theories of great thinkers gives us the possibility to understand the complexity of the phenomenon of criminal punishment, and leads to the more effective application of state constraint towards the offender.

Author(s):  
N.V. Golovko ◽  

The article is devoted to the analysis of theoretical and legal issues related to the problems of bringing minors to criminal responsibility, as well as the execution of criminal punishment imposed by the court against them. The analysis of legal literature, legislative acts, as well as judicial and investigative practice regarding the privileges provided by the criminal law in relation to juvenile offenders. On the basis of the research, the author identified the main tasks facing law enforcement officers, who are charged with the duty to perform the criminal penalties established by the court against adolescents.


Author(s):  
Павел Сергеевич Солоницын

Статья посвящена идеям о философском и практическом смысле уголовного наказания, высказанным в начале ХХ в. выдающимся русским мыслителем С. И. Гессеном. Данные идеи представлены в единственной работе философа, посвященной уголовно-правовой тематике: «Философии наказания». В работе Гессен, опираясь на наследие Канта, Гегеля, а также современные ему эмпирическое и рационалистическое направления в теории уголовно-правовой науки, на воззрения русского философа В. С. Соловьева, пытается сформулировать философский смысл уголовного наказания как института человеческой культуры. Гессен видит этот смысл в восстановлении нарушенного преступлением равновесия между законностью и жизнью. Иррациональный характер преступления и внесенный им в жизненный порядок хаос преодолеваются осуждением преступника, переживанием им этого осуждения и конкретными ограничениями прав преступника, которые полагаются законодательством. Осуждением восстанавливается справедливость, поскольку правовая норма, нарушенная преступлением, подтверждается актом правосудия. При этом осуждение в форме вынесения приговора рассматривается как низшая планка наказания, которая сама по себе достаточна для восстановления справедливости. Высшая планка наказания - это лишение преступника всех прав, за исключением одного. При этом Гессен не называет данного права, подчеркивая, что акт наказания, сохраняя за преступником право, подтверждает его правосубъектность, которая подразумевает, в том числе, право быть наказанным. Иные меры наказания, обычно назначаемые за преступление, рассматриваются Гессеном с точки зрения материализации осуждения как формы наказания. Они подводятся под психофизические особенности личности преступника, характер совершенного им преступления, возможности государства, а также конкретные цели наказания, которые могут стоять перед ним в различные исторические эпохи. Эти цели для Гессена с точки зрения его философской теории наказания безразличны по отношению к его сущности как акта восстановления справедливости. Высшая планка наказания также напрямую связана с вопросом смертной казни, которую Гессен выводит за рамки правового порядка. The article is devoted to the ideas about the philosophical and practical meaning of criminal punishment, expressed in the early twentieth century by the outstanding Russian thinker S. I. Gessen. These ideas are developed in the only work of the philosopher, enlightened criminal law topics - «The Philosophy of punishment». In his work, Gessen, relying on the legacy of Kant, Gegel, as well as the empirical and rationalistic trends in the theory of criminal law science, on the views of the Russian philosopher V. S. Solovyov, tries to formulate the philosophical meaning of criminal punishment as an institution of human culture. Gessen sees this meaning in restoring the balance between legality and life disturbed by crime. The irrational nature of the crime and the chaos introduced by it into the life order are overcome by the conviction of the criminal, his experience of this condemnation and specific restrictions on the rights of the criminal which are prescribed by law. By conviction justice is restored since the legal norm violated by the crime is confirmed by an act of justice. At the same time a conviction in the form of sentencing is considered as the lowest level of punishment which in itself is sufficient to restore justice. The highest level of punishment is the deprivation of the criminal of all rights with the exception of one. At the same time Gessen does not name this right. Emphasizing that the act of punishment while preserving the criminal's right confirms his legal personality which implies among other things the right to be punished. Other punishments usually imposed for a crime are considered by Gessen from the point of view of the materialization of the conviction as a form of punishment. They are summed up under the psychophysical characteristics of the criminal's personality, the nature of the crime committed by him, the capabilities of the state, as well as the specific goals of punishment that may face him in various historical epochs. These goals for Gessen from the point of view of his philosophical theory of punishment are indifferent to its essence as an act of restoring justice. The highest level of punishment is also directly related to the issue of the death penalty which Gessen takes out of the legal order.


Author(s):  
Andrei Zvonov

Ever since the Criminal Code of the Russian Federation was adopted, new amendments have been added to it every year. Thus, the system of criminal law measures has been regularly improved through changes to the existing norms, the abolishment of old norms and the introduction of new ones. On the whole, modern Russian criminal policy is aimed at increasing the number of possible measures of influencing lawbreakers. One of the latest innovations is the institute of court fines introduced by the Federal Law № 323-ФЗ of July 3, 2016. It is a beneficial innovation. Monetary penalties can now be used practically at all stages of court procedures: before delivering a judgment - as a court fine, and as part of the sentence when a fine is a criminal penalty. This could have a positive impact on court procedures and the enforcement of criminal measures, it could also increase income to the budget in the unstable financial conditions. However, the imposition of monetary penalties has some drawbacks, as it may not be always possible to control the payment of fines by the perpetrators, especially when such payments are done one-time. There are some other issues and negative sides connected with the further development of the institute of monetary penalties. The analysis of penalties enforcement allowed the author to identify one vital drawback - a gap in the legal regulation regarding the control that a specially authorized agency has over the perpetrators. While this could be considered acceptable in the case of court fines, it is not adequate for the goals of criminal punishment. The results of the generalized analysis of punitive measures allow the author to conclude that it is necessary to make monetary penalty a measure that is different from criminal punishment; it should be enforced in cases of exemption from criminal liability or as an obligatory addition to criminal punishment.


2021 ◽  
pp. 153448432110040
Author(s):  
Ion Georgiou

Approaching a body of literature from a historical perspective is widely acknowledged as essential to conducting a literature review. Methodological guidance for approaching a body of literature from a historical perspective depends on familiarity with works historians have written about the practice of historical research. This article provides some direction by drawing from the best-known work of one distinguished historian, a work which, upon careful reading, outlines some fundamental tasks for the historically-inclined reviewer of a body of literature. An evaluation rubric is presented that facilitates a progressive appraisal of the integration of history within a literature review. Ultimately, the article serves to stimulate the processes of thought, interpretation and rationalization when historically engaging with a body of literature. Numerous examples from the literature on human resource development are identified that illustrate the issues discussed in the article.


2021 ◽  
pp. 096466392110208
Author(s):  
Riikka Kotanen

In the context of home, violence remains more accepted when committed against children than adults. Normalisation of parental violence has been documented in attitudinal surveys, professional practices, and legal regulation. For example, in many countries violent disciplining of children is the only legal form of interpersonal violence. This study explores the societal invisibility and normalisation of parental violence as a crime by analysing legislation and control policies regulating the division of labour and involvement between social welfare and criminal justice authorities. An empirical case study from Finland, where all forms of parental violence were legally prohibited in 1983, is used to elucidate the divergence between (criminal) law and control policies. The analysis demonstrates how normalisation operates at the policy-level where, within the same system of control that criminalised these acts, structural hindrances are built to prevent criminal justice interventions.


2018 ◽  
Vol 10 (2) ◽  
pp. 405-447 ◽  
Author(s):  
Scott Hershovitz

AbstractThe idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law. In this essay, I argue that tort liability expresses the judgment that the defendant wronged the plaintiff. And I explain why it is important to have an institution that expresses that judgment. I argue that we need ways of treating wrongs as wrongs, so that we can vindicate the social standing of victims. Along the way, I consider the continuity between tort and revenge, and I suggest a new way of thinking about corrective justice and the role that tort plays in dispensing it. I conclude by sketching an agenda for tort reform that would improve tort’s ability to serve its expressive function.


2021 ◽  
Vol 22 (5) ◽  
pp. 833-846
Author(s):  
Tatjana Hörnle

AbstractThe article describes the #MeToo-movement in the United States and Germany and discusses the merits and problems of this social phenomenon. It highlights the fact that some features of #MeToo (blaming and sanctioning wrongdoers) resemble those of criminal punishment and thus require careful justification. In the final part, the author examines the impact of the #MeToo-movement on criminal law reform.


Author(s):  
Vаleria A. Terentieva ◽  

The systematic nature of criminal law forms the main features of the industry, namely: normativity, universalism, that is, the absence of casuistry and obligation. The strict consistency of both the entire industry and its individual institutions allows avoiding the redundancy of criminal law regulation, clearly determining the legal status of a person in conflict with the law. However, the norms of the Criminal Code of the Russian Federation do not always meet these requirements due to defects in legal technology, and, sometimes, gaps in regulation. In practice, the courts, in an effort to minimize the above defects, sometimes resort to excessive criminal law regulation; as an example, the article gives the ratio of the application of suspended sentence and placement in a special educational institution of a closed type. The article analyzes sentences to minors in which Art. 73 and Part 2 of Art. 92 of the Criminal Code of the Russian Federation were simultaneously applied in one sentence for the same act. For a comprehensive study, the article analyzed sentences to minors held in special educational institutions of a closed type for the period from 2014 to 2020, criminal statistics posted on the website of the Judicial Department of the Supreme Court of the Russian Federation, as well as various points of view of leading legal scholars. The research methods of static observation, analysis and synthesis, the system-structural method, as well as a number of factographic methods, were used. The study develops from the general to the specific, i.e., first, systematicity is analyzed as a property of the branch of criminal law and then as a property of a legal institution, namely, the release of minors from criminal liability. Consistency as a property of the institution of exemption from criminal punishment presupposes the impossibility of intersecting elements within one institution. Special attention is paid to the legal nature of suspended sentence as the most common punishment measure for minors, and its effectiveness. Then the cases of the simultaneous application of Art. 73 and Part 2 of Art. 92 of the Criminal Code of the Russian Federation are analyzed. In the course of the study, the author examines the features of suspended sentence and placement in a special educational and educational institution of a closed type, compares these two forms of criminal liability, and highlights the differences. The conclusion is that the simultaneous placement in a special educational institution of a closed type and suspended sentence are a redundancy of criminal law regulation. The article raises the question of the need to improve the Criminal Code in terms of the development of placement in a special educational and educational institution of a closed type as a type of exemption from criminal punishment: the court is to be provided with the opportunity to control the juvenile offender’s correctional process.


Author(s):  
Viktoriia V. Haltsova ◽  
Sergiy O. Kharytonov ◽  
Oleksandr M. Khramtsov ◽  
Oleksandr O. Zhytnyi ◽  
Andrii A. Vasyliev

This paper is a comprehensive study of the problems of criminal law as a remedy for human rights and freedoms in the modern world. The relevance of this subject lies in the systematic violations of constitutional human rights and freedoms and the inaction of the criminal law in such cases. Nowadays, the criminal law as a remedy for human rights and freedoms in national and international law is described by imperfection in its adaptation to rapidly changing social relations, which, accordingly, leads to problems in their legal protection. There are various reasons for this in the legal sphere, such as gaps in the legal provisions, conflicts of legal regulation and inconsistency of the rules of legislation with existing public relations in the state. All of the above determines the relevance of the subject matter of this study. Thus, the purpose of this study was a comprehensive analysis of theoretical and applied issues relating to the remedies for human rights and legitimate interests against socially dangerous encroachments, and the formulation of scientifically sound proposals for improving the current legislation of Ukraine and the practice of its application in this area. Ultimately, this study identified the legal characteristics of human rights and freedoms at both the national and international levels. The remedies for rights were demonstrated through the lens of criminal law. In addition, the study analysed the forms of implementation of international practice in the national legislation of Ukraine as a remedy for human rights and freedoms in the modern world. The significance of the results of this study was expressed in the further research of related subjects concerning this issue, namely the history of the development of EU criminal law standards and the historical establishment of the concept of human and citizen rights and legitimate interests. Furthermore, the materials of this study can be used in the preparation of educational materials, methodological recommendations, as well as training in various fields of legal science. This, in turn, will allow properly using the criminal law protection of human rights and freedoms without violations on the part of criminal justice bodies


Author(s):  
A. I. Antonov

The publication is devoted to legal issues and prospects of banning weapons in outer space. The international legal basis currently existing in this field governs only certain aspects of use of outer space for military purposes, and it is obviously not enough to prevent the emergence of weapons in outer space. Attempts on the international level in recent years to put legal provisions in place that would establish barriers to an arms race in outer space so far have not been successful. The time is ripe to implement initiatives contributing to the institutionalization of verification activities on non-weaponization of outer space


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