PHILOSOPHICAL MEANING OF PUNISHMENT IN THE WORK OF S. I. GESSEN

2021 ◽  
pp. 53-57
Author(s):  
Павел Сергеевич Солоницын
Keyword(s):  
Twentieth Century ◽  
Death Penalty ◽  
Criminal Law ◽  
Legal Order ◽  
Point Of View ◽  
Philosophical Theory ◽  
Criminal Punishment ◽  
Legal Personality ◽  
Philosophy Of Punishment ◽  
The Right

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.

scholarly journals Deprivation Of The Right To Hold Certain Positions And Engage In Certain Activities In Foreign Legislation

2021 ◽  
Vol 03 (04) ◽  
pp. 88-93
Author(s):  
Farkhod Sayfullaevich Alikulov ◽  
Keyword(s):  
Criminal Law ◽  
Point Of View ◽  
Criminal Punishment ◽  
Foreign Countries ◽  
The Right

The comprehensiveness of the penitentiary system is central to achieving the goal of criminal punishment. In other words, no matter how perfect the type and system of punishment, if the mechanism of its application and execution is not implemented wisely, unfortunately, this punishment will remain ineffective. Deprivation of a certain right has a preventive character, which is clearly expressed as a punitive measure. The imposition of this penalty is mainly due to the need to prevent the recurrence of these crimes by persons who commit crimes related to the abuse of available opportunities in connection with their position or activities. It substantiates the relevance of the analysis of punishment in the form of deprivation of a particular right from the point of view of criminal law and criminal-executive law and the need to study it. This article reflects the specifics of punishment in the form of deprivation of certain rights in the criminal law of some foreign countries.

scholarly journals Multilingualism, Divergent Authentic Versions of a Legal Rule and Legitimate Expectations Of Individuals

2016 ◽  
Vol 45 (1) ◽  
pp. 141-159 ◽  
Author(s):  
Rafał Mańko
Keyword(s):  
Member State ◽  
Criminal Law ◽  
Legal Rule ◽  
Legal Order ◽  
Point Of View ◽  
Official Language ◽  
Eu Law ◽  
Legitimate Expectations ◽  
The Right ◽  
The Eu

Abstract The paper argues that the multilingualism of the EU legal order should be viewed from the point of view of the right of individuals to acquaint themselves with the their rights and duties under EU law in the official language of their Member State. In case of discrepancies of equally authentic versions, individuals should have the possibility to rely on an ‘authentic version’ defence, especially in tax, customs and criminal law relationships.

Allegiance, Diplomatic Protection and Criminal Jurisdiction Over Aliens

1947 ◽  
Vol 9 (3) ◽  
pp. 330-348 ◽  
Author(s):  
H. Lauterpacht
Keyword(s):  
International Law ◽  
Present Article ◽  
Criminal Law ◽  
Constitutional Law ◽  
Point Of View ◽  
Considerable Importance ◽  
Criminal Jurisdiction ◽  
Diplomatic Protection ◽  
The Right

The cause célèbre of King v. William Joyce, subsequently reported as Joyce v. Director of Public Prosecutions, was concerned to a large extent with matters of interest for international law, and it is mainly from this point of view that it is proposed to discuss it in the present article. Obviously the case is also of considerable importance both for criminal law, in so far as it is concerned with the crime of treason, and for constitutional law inasmuch as it bears directly on the question of the nature and the obligations of allegiance. However, it is probable that the case books which will claim it most insistently will be those of international law. For the decision in Rex v. Joyce is not only an authority on certain aspects of allegiance owed by aliens and of the right of a State to assume jurisdiction over acts committed by aliens abroad. It sheds light on such questions as the nature of diplomatic protection of citizens, the right of a State to protect diplomatically persons who are not its citizens, the obligation of allegiance of so-called protected persons, and some others. Not all these questions were judicially answered, but they loomed large in argument and imparted to the proceedings the complexion of a case concerned predominantly with international law. In view of this it may be pertinent to preface this article by drawing attention to a point which appears to be a mere matter of terminology but which, it is believed, raises an issue of wider significance.

scholarly journals PARADIGM OF DEATH PENALTY (COMPARATIVE STUDY IN INDONESIA, SAUDI ARABIA AND CHINA)

2020 ◽  
Vol 2 (1) ◽  
Author(s):  
Tedy Nopriandi ◽  
Risky Fany Ardhiansyah
Keyword(s):  
Saudi Arabia ◽  
Death Penalty ◽  
Criminal Law ◽  
Capital Punishment ◽  
Islamic Law ◽  
Human Life ◽  
Criminal Code ◽  
Comparative Approach ◽  
Law System ◽  
The Right

The death penalty is one of old criminal type as the age of human life, and the most controversial crime in of all criminal systems, both in countries that adhere to the Common Law System and in countries that embrace Civil Law, Islamic Law and Socialist Law. There are two main thoughts about the death penalty, namely: first, those who want to keep it based on the force provisions, and second are those who wish to the abolition as a whole. Indonesia includes a country that still maintains capital punishment in a positive legal system. This paper aims to resolve problems of the death penalty concept concerning the controversy purpose of the death penalty and to analyze the regulations, procedures and philosophies regarding the death penalty in Indonesia, Saudi Arabia and China. This paper uses normative juridical research and the methods based on the doctrine and developed by the author. The approach used the legal approach, historical approach and comparative approach, then analyzed by the customary method.The result of the study shows that the death penalty can be seen from the philosophical aspects of Indonesian criminal law, as well as the philosophical aspects of Islamic and Chinese criminal law. So that everything can not be separated from the essential legal objectives, namely for the creation of justice. Death penalty in Islamic law turns out the concept of restorative justice specifically for the crime of deliberate killing (al-qatl al-'amd), which the execution highly depends on the victim’s family. The victim’s family, in this case, has the right to choose whether qisas (death penalty) or their apologize for the murder suspect, and diyat payment. While China in the implementation of death penalty applies the concept of rehabilitation, which in the execution of the death penalty is called a death penalty delay for two years and in its implementation, the defendant is given a job and control them. Whereas in Indonesia, capital punishment is a specific criminal offence and threatened with alternatives and is still a draft Criminal Code.

SCIENTIFIC VIEWS REGARDING THE CONTENT AND MEANING OF PUNISHMENT

2021 ◽  
Vol 6 (8) ◽  
pp. 71-78
Author(s):  
Mirakbar lmuratov ◽  
Keyword(s):  
Legal Order ◽  
Point Of View ◽  
Criminal Punishment ◽  
Active Participant ◽  
The Law

In this article analyzed scientific views on the content and meaning of punishment. In particular, the article examines the opinions of scientists about the content and meaning of punishment. At the end of the article, the author gives his own point of view and suggestions. This article reveals the following specific tasks of criminal punishment: firstly, socially dangerous acts are assigned to the perpetrators; secondly, it pursues the goal of transforming a person serving a sentence into a reasonable and active participant in the processes taking place in society; thirdly, the recognition as criminal acts of socially dangerous acts associated with the imposition of certain punishments in accordance with the law, as well as the positive application of such punishments in practice in relation to unstable persons, i.e. influencing in the direction of their compliance with the rules of the legal order.

IV. The Proposed Madrid Conference on Morocco, 1887–88

1965 ◽  
Vol 8 (1) ◽  
pp. 72-94
Author(s):  
F. V. Parsons
Keyword(s):  
Twentieth Century ◽  
International Politics ◽  
Direct Action ◽  
Point Of View ◽  
The West ◽  
Strategic Position ◽  
Fait Accompli ◽  
The Mediterranean ◽  
The Right ◽  
Active Policy

The future of Morocco was not an issue which suddenly began to agitate international politics at the beginning of the twentieth century, as a sort of left-over of imperialism belatedly brought to mind. ‘We are living… on the crater of a Volcano’ was neither a new, nor untypical view of the situation as seen from Tangier in 1881. Britain had already made an attempt to regenerate the ‘sick man of the West’, before he could cause as many complications as the fellow Muslim invalid to the East, by taking the initiative which led to the Madrid Conference respecting the right of Protection of Moorish Subjects in 1880. But this was not a success. Nor did the attempts which followed to persuade the so-called Shereefian Empire, in its vital strategic position at the entrance to the Mediterranean, to provide itself with the revenue, tools and incentive necessary for reform by the conclusion of a liberal commercial treaty, gain their objective. France also was concerned with Morocco, and the Algerian military point of view, which stressed the security danger of allowing any other power to establish preponderant influence there, was gradually gaining ground. One French minister at Tangier, Ordega, had gone as far as to try and present his government in 1884 with the fait accompli of a revolution in Morocco, with a French protégé on the Moorish throne. But the Paris authorities were not willing, or at this stage even able, to sanction such a forward policy. Spain was the power which, at official level, had long considered it had the right of reversion to the Moorish heritage. But internal weakness precluded direct action, and Spanish governments were reduced to other approaches. The negative one, associated with the conservative statesman Cánovas del Castillo, stressed the need to ‘prolong the dying agony of Morocco’, until Spain had recovered sufficiently to claim her rights. Others, however, argued for a more active policy, and they had an opportunity in the ‘Liberal’; ministries of the 1880's. It is in this context that the activity of Segismundo Moret, Minister of State from November 1885, was of relevance in bringing Morocco further into the international arena.

scholarly journals The Right to a Fair Fight

2014 ◽  
Vol 17 (1) ◽  
pp. 55-75
Author(s):  
Jack Anderson
Keyword(s):  
Nineteenth Century ◽  
Twentieth Century ◽  
Criminal Law ◽  
Common Law ◽  
Bodily Harm ◽  
The Right ◽  
Professional Boxing

This article critically assesses the criminal law on consensual harm through an examination of the legality of fighting sports. The article begins by considering fighting sports such as bare-fisted prize fighting (dominant in the nineteenth century). It then, in historical chronology, examines the legality of professional boxing with gloves (dominant in the twentieth century). Doctrinally, the article reviews why and how, in a position adopted by the leading common law jurisdictions, fighting sports benefit from an application of the “well-established” category-based exceptions to the usual bodily harm threshold of consent in the criminal law. Centrally, fighting sports and doctrinal law on offenses against the person are juxtaposed against the theoretical boundaries of consent in the criminal law to examine whether and where the limit of the “right to be hurt” might lie. In sum, this article uses fighting sports as a case study to assess whether the criminal law generally can or should accommodate the notion of a fair fight, sporting or otherwise, predicated on the consent of the participants to the point that the individuals involved might be said, pithily, to have extended an open invite to harm.

scholarly journals Social distributional aspect of penal actions

2019 ◽  
Vol 135 ◽  
pp. 04063
Author(s):  
Valery Lapshin ◽  
Sergey Korneev
Keyword(s):  
Twentieth Century ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Mentally Retarded ◽  
State Of Health ◽  
Criminal Punishment ◽  
Practical Application ◽  
State Coercion ◽  
Criminal Legislation

Criminal legislation of any state provided at the initial stages of its development for punishment as the only measure of criminal law influence on a person committing a socially dangerous act. Moreover, the types of punishment mainly boiled down to long periods of isolation of the convicted person from society: hard labor and imprisonment. Only in the middle of the twentieth century Russian legislation ensured the distinction between the categories of “criminal punishment” and “criminal liability”, although the official definition has not yet been formulated. The main legally significant signs of criminal punishment as measures of state coercion and other measures implemented within the framework of criminal liability coincide, and therefore it is not possible to ensure a consistent legal differentiation of these categories. In addition, “other measures” of a criminal law nature are highlighted in the Russian criminal legislation, their essence is currently uncertain, since they apply to persons incapable of criminal responsibility (insane, some groups of minors), and persons convicted of a crime. Such terminological inconsistency creates problems in practical application of provisions of the criminal and penal legislation to ensure the correction of convicted person and the prevention of new crimes. Basing on the results of the study, it was proposed to divide the groups of measures that are implemented within the framework of criminal liability institutions and other measures of a criminal law nature. The former apply to persons convicted of a crime. “Other measures” are applied to persons incapable of criminal responsibility for a committed socially dangerous act due to a state of health or social and intellectual immaturity: irresponsible, mentally retarded, minors. This will provide the proper terminological distinction of the essence of legal categories and will allow identifying true goals of their application.

scholarly journals Difficult way of the institution of criminal liability for attacks on the honor and dignity of the person, or problems of targeting

2021 ◽  
Vol 7 (2) ◽  
pp. 48-56
Author(s):  
T. V. Klenova
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Policy ◽  
Point Of View ◽  
Historical Method ◽  
Democratic State ◽  
The Individual ◽  
The Right ◽  
Criminal Legislation ◽  
The Impact

The article is devoted to the institution of criminal liability for attacks on the honor and dignity of the individual. The article, using the historical method, examines the stages of development of this institution and the features of protecting the honor and dignity of the individual from the point of view of the values of a modern democratic state. The author analyses the impact of explicit and implicit criminal policy objectives on the ways to protect the honor and dignity of the individual. Particular attention is paid to the criminalization and decriminalization of libel and slander. The research is aimed at identifying the problems of targeting in changes in the institution of criminal liability for attacks on honor and dignity, when the relevant criminal law norms are replaced by administrative law norms. The author seeks to depoliticize the protection of the personal right to honor and dignity on the basis of the principle of equality of citizens before the law. The current Russian criminal legislation is mainly aimed at protecting the honor and dignity of persons in connection with their social accessories. Within the protective concept of criminal law, the author of the article justifies the conclusion that the right of anyone who has suffered from slander or insult to achieve the truth and state censure of the perpetrator is guaranteed. Such a view will also be interesting to researchers of the criminal process.

Personal Liability and Human Free Will in the Background of Emerging Neuroethical Issues

2014 ◽  
pp. 27-40
Author(s):  
Angela Di Carlo ◽  
Elettra Stradella
Keyword(s):  
Free Will ◽  
Criminal Law ◽  
Human Dignity ◽  
General Framework ◽  
Point Of View ◽  
Constitutional Rights ◽  
Key Concepts ◽  
Legal Concepts ◽  
The Right ◽  
Personal Liability

In this chapter, the authors analyse the issues connected to emerging neurotechnologies, in particular their effects on (legal) concepts like capacity, liability, testimony, and evidence, and also on fundamental constitutional rights and freedoms like the right to autonomy and the right not to be treated without consent (in the general framework of the principle of human dignity). Starting from preliminary remarks on the key concepts of neuroethics/technoethics, neurolaw/technolaw, the authors investigate how personal liability is changing in the framework of new scientific developments. The chapter underlines that neurolaw challenges some of the traditional legal institutions in the field of law (e.g., criminal law). From the point of view of ethics, the chapter concludes that neuroethics is not challenged by the data coming from the use of emerging neurotechnologies, but human self-perception is strongly affected by it.

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