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Сriminal law is a set of laws that define the list, characteristics and classification of acts that are defined by the state as ‘crimes’. Criminal law establishes ‘punishment’ for ‘criminals’ – deviants who have committed such acts. Criminal law defines the principles and conditions of criminal liability; the types and amounts of punishments and other types of criminal law response to the most dangerous forms of deviant acts applied to ‘criminals’ (both in conditions of their forced isolation and without it).
Criminal law is a living instrument that is constantly updated as a result of social, political, technological and economic development: ‘What is a crime in one state is not a crime in another, and what was a crime yesterday is not a crime today’ (examples include the persecution of “witches” in the Middle Ages or the responsibility for “illegal karate training” in Soviet criminal codes). The criminalisation and decriminalisation of certain acts is a concomitant of the transformation of criminal law over time.
Criminal law aims to model as accurately as possible behaviour that is perceived as dangerous to property, health, state security, the environment, peace and security of mankind, etc. In a democratic state, the basic goal of criminal law is to find a balance between the minimum number of prohibited acts and the protection of society and the state from such acts in order to avoid excessive stigmatisation of deviants through the status of ‘criminal’.
In totalitarian states, the number of ‘crimes’ is increased to the maximum, which leads to the total encapsulation of society and the blurring of the social and psychological boundaries between ‘free society’ and ‘prison’ (for example, Article Fifty-eight of the Criminal Code of the Russian SFSR, which established responsibility for ‘active actions or active struggle against the working class and the revolutionary movement’.
Criminal law applies the principle of ‘no crime unless it is stated in the law’ (Latin: nulla poena sine lege), according to which no one can be found guilty of any crime on the basis of an act or omission that did not constitute a crime under national or international law at the time it was committed. Nor may a person be punished more severely than was applicable at the time of the offence. Principles of criminal law should be implemented in accordance with human rights standards (presumption of innocence, proof of guilt beyond reasonable doubt, non-repetition of criminal liability for the same offence, etc.)
As an instrument of coercion, criminal law requires appropriate justification, namely: Why does the State declare the right to punishment and for what purpose does it apply punishment? Thus, punishment has several competing goals – from punishment and retribution to deterrence, general prevention or rehabilitation of the most dangerous deviants. These goals overlap, and none of them is considered in isolation from the others.
In the legislation of most states and international acts, the main goal of criminal punishment is declared to be the rehabilitation (re-socialisation, reintegration, correction, etc.) of deviants, although after the ‘crisis of the rehabilitative ideal’ of the 1970s, the rehabilitative potential of punishments (both imprisonment and probation) was subjected to a revision. The European Court of Human Rights emphasises that ‘legitimate penological grounds’ are integral to social rehabilitation. At the same time, the main ‘legitimate penological grounds’ remain the protection of society, including by preventing reoffending, as well as punishment (retribution) and intimidation (James, Wells and Lee v. the UK, para 209; Dickson v. the UK [GC], para 28; Murray v. the Netherlands [GC], para 100; Mastromatteo v. Italy [GC], para 72).
According to the traditional view of criminal law, the focus of its attention is the ‘crime’. However, it is the nature, purposes and functions of punishment that have shaped modern criminal law.
In the light of the classical approach to the reasons for the transformation of criminal law in the eighteenth century, the medieval (so-called ‘royal’) modality of punishment directed ‘against the body’ of the offender was replaced by the so-called ‘Christian’ and ‘republican’ penal idea, which led to the emergence of punishment ‘against the soul’ based on ‘remorse’ with the fundamental category of ‘humanisation’ and the massive creation of ‘penitentiaries’.
Within the revisionist approach, the change in the focus of punishment from the ‘physical body’ to the ‘soul’ was due to the economic inexpediency of punishment ‘against the body’ and the need to spread discipline among the working class: ‘Why should society destroy the life and body that it can appropriate?’ (M. Foucault). The criminal code, which replaced medieval law, provided for the mitigation of punishments, their clearer codification, and a significant reduction in judicial arbitrariness, but in fact it aimed to establish new principles of regulation, improvement and unification of the art of punishment, to make its application homogeneous, to reduce the economic and political cost of punishment by increasing its efficiency and the number of channels of social control. The new criminal law is not about ‘humanisation’, but about creating a new economy and a new technology of the power to punish: ‘Humanity’ is a respectful name for economy and its scrupulous calculations. In terms of punishment, the minimum is dictated by humanity, the maximum is recommended by politics’ (M. Foucault).
Any national law on criminal liability is used to stabilise the institutions through which the state (or political elites) creates and distributes social goods. Therefore, criminal law is generally interpreted as an instrument of coercion, which – despite the declared equality of all before the law – is a social filter that maintains social inequality through the application of criminal law prohibitions to the most socially vulnerable, materially impoverished and/or maladjusted segments of the population. Through the application of criminal penalties, criminal law performs the following political functions (E. Duff, D. Garland): 1) ‘purification’ – removal from social relations of real and/or declared deviants who are considered dangerous for political elites; 2) ‘pumping out’ – through physical (through imprisonment) and social isolation (through probation), the threat to political elites is ‘pumped out’ from society 3) ‘distraction’ – public attention is focused on ordinary crime and the danger posed by this crime, through the creation of moral panic and the invention of new folk devils, while the crimes of political elites are not given due attention; 4) ‘practical’ function – political elites assure the population that they are doing everything possible to ‘fight crime’, which serves the purpose of increasing the number of folk devils and creating even greater moral panic.
In the twenty-first century, criminal law is seen as an instrument of social control of political elites over social groups that have, demonstrate or may demonstrate ‘risks’, which is why criminal law is seen as the ‘Criminal Law of Risks’ as opposed to the classical ‘Criminal Law of Freedom’. The latter is declared as a regulator of relations between the State and a rational individual in terms of establishing prohibitions on certain acts, while the ‘Criminal Law of Risks’ appears as an instrument of ‘panoptic surveillance’ and protection of risks from real, declared or potential deviants, where the traditional sphere of criminal law ‘regulation of social relations’ is replaced by ‘management of risks of committing crimes’.
Criminal law does not exist in an abstract vacuum – it is reproduced in the ‘criminal justice system’, which ‘transports’ the ‘criminal’ along the institutional conveyor belt: police – prosecutor’s office – court – prison system, while declaring the respective goals of punishment and the missions of the elements of this conveyor belt, where such goals and missions are presented in the categories of order, security, social and political progress, achievement of ‘higher values’ and ‘better life’. At the same time, the actual product of criminal law as a social regulator is numerous negative social consequences (severance of social ties of deviants and their stigmatisation, increase in the prison population, social stratification, etc.), while the impact of formal criminal law prohibitions on crime remains virtually unmeasured. At the same time, in some societies (Russia), the values formally protected by the criminal law contradict the actual values that dominate society and are protected by the state, when the criminal (prison) subculture turns into a national culture.
In the process of transformation of criminal law as an instrument of coercion, the fundamental issues were the personality of the criminal and the rationality of the criminal in choosing criminal behaviour, where the presence or absence of a rational choice determined the moral justification of punishment. Criminal law has evolved from a view of the criminal as a passive element in the hands of external forces (being under the influence of dark forces in the Middle Ages) to a rational actor in the nineteenth century, from a criminal whose behaviour is determined by biological factors, and again to rationality as the basis of criminal behaviour.
The Criminal law of the twenty-first century is influenced by the increase in the number of prisoners, the growth of the number of prison-based TNCs and the scope of their activities, as well as the revival of the concept of a ‘dangerous criminal’ (dangerous person). While the classical ‘Criminal Law of Freedom’ speaks of only a few categories of rational ‘criminals’, the ‘Criminal Law of Risks’ expands their classification by adding a large number of ‘intermediate states’: instead of a single group of ‘criminals’, there are ‘criminals’, ‘deviants’, ‘abusers’, ‘pedophiles’, ‘sexual predators’, ‘persons with suspicious behaviour’, ‘persons with abnormal behaviour’.
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