Lecture
Principles of law are the fundamental, initial foundations and requirements that express the essence of law and determine the general direction of legal regulation.
On the one hand, they express certain regularities of law, and on the other, they are the most general norms, which operate throughout the entire sphere of legal regulation and apply to all subjects. These norms are either formulated directly in a statute or derived from the general meaning of statutes.
Principles of law determine the ways of improving legal norms, serving as guiding ideas for the legislator. They are the link between the basic patterns of the development and functioning of society and the legal system. Thanks to these principles, the legal system adapts to the most important interests and needs of the individual and society and becomes compatible with them.
Legal principles are divided into those inherent in law as a whole (general legal), in its individual branches (branch-specific), or in a group of related branches (inter-branch). For example, the principle of individualization of punishment in criminal law is branch-specific, while the adversarial principle in civil procedure and criminal procedure law is inter-branch.
1) They are fundamental, initial foundations and requirements.
2) They express the essence of law.
3) They are objective in nature, since they reflect objectively existing social relations.
4) They are considerably more stable than specific rules of law.
5) They are the core of the whole system of law and are elaborated in specific rules of law (the more fully, precisely and consistently the normative expression of law is developed, the more effective the legal regulation is) Ways of expressing the principles of law:
Principles of law can be expressed in two ways:
- textual: the principles are enshrined in a normative legal act (NLA),
- semantic: the principles are not formulated in the NLA but are derived from its meaning through analysis of the text.
I. General legal (inherent in law as a whole)
1. the principle of social freedom (providing maximum freedom in choosing forms of employment, profession and place of residence, and the ability to use various social services, etc.),
2. the principle of social justice (correspondence between the practical role of individuals in the life of society and their social status, between their rights and duties, between labor and reward, crime and punishment, and a person's merits and their public recognition.
3. the principle of democracy (law and legislation adequately reflect the will and interests of the people),
4. the principle of humanism (recognition of the human being, and their rights and freedoms, as the supreme value of society),
5. the principle of equal rights (all citizens, regardless of nationality, sex, race, religious or other affiliation, or official position, have equal rights and duties and bear equal responsibility before the law),
6. the principle of unity of subjective rights and legal duties (the legal rights and duties of participants in social relations are interconnected and mutually conditioned),
7. the principle of mutual responsibility of the individual and the state,
8. the principle of legality (the carrying out of all forms of state activity and the functioning of civil society on the basis of, and in accordance with, the requirements of law).
II. Inter-branch (inherent in several related branches of law. For example, the principle of adversarial proceedings and equality of the parties in civil and criminal proceedings).
III. Branch-specific (inherent in a particular branch of law: for example, the principle of freedom of contract in civil law).
IV. Principles of legal institutions (inherent in specific institutions of law. For example, the principle of equal access of citizens to the civil service in the institution of the civil service.).
The principle of legality is the strict and unwavering adherence to the law by the subjects of legal relations. It means that state authorities and officials act strictly within the powers granted to them by legislation, and that the established procedure is strictly and precisely observed when
making legal decisions. In carrying out law enforcement activity, state authorities and officials must
not go beyond the limits of the law.
The principle of social justice means that the activity of law enforcement bodies and officials must be aimed at protecting the lawful rights and freedoms of the individual and establishing legality and law and order in society, rather than at securing the interests of any particular social groups and strata.
The principle of soundness means that a competent body takes a decision only on the basis of verified, reliable facts that are beyond doubt. The law enforcement body is obliged to study carefully and use only the materials relevant to the case. Violation of the principle of soundness is grounds for setting aside the law enforcement act.
The principle of expediency means choosing the most optimal way of carrying out legal prescriptions in particular real-life circumstances, as well as taking into account the specific conditions of application of a given normative legal act.
The operation of any law, including criminal law, must always correspond to a certain purpose, and the actions aimed at its formation and subsequent practical implementation must therefore be expedient. All provisions of the Criminal Code of the Russian Federation, and each of its individual norms, are carriers of some purpose, and it is precisely the existence of this purpose that determines the necessity (expediency) of the existence of particular prescriptions in the Criminal Code. If a given norm or part of it has lost its relevance, its existence in the Code becomes inexpedient, i.e. there is no longer any need to mention it within the criminal law. In this connection, the legislator decides the question of the expediency or inexpediency of (de)criminalization and (de)penalization of acts. It follows that the manifestation of the principles of expediency is possible primarily at the law-making level.
At the same time, many provisions of the Criminal Code of the Russian Federation are formulated in such a way that their unambiguous understanding and application become impossible. This concerns, above all, cases where the law leaves the right to choose one of several possible decisions to the law enforcer, or where there is no choice at all. This is quite possible, for example, in the practical implementation of the norms on conditional sentence (Art. 73), conditional early release from punishment (Art. 79), and the imposition of a milder punishment than that provided for the given crime (Art. 64). One can speak of the principles of expediency also in relation to release from criminal liability: Art. 75 — active repentance; Art. 76 — release from liability in connection with reconciliation with the victim; Art. 76.2 — release from liability with the imposition of a court fine.
In accordance with all of the articles listed, the law enforcer is entitled to choose the necessary, correct and expedient decision. Thus, Articles 75, 76 and 76.2 of the Criminal Code speak only of the possibility of releasing a person from criminal liability if certain conditions are present, and not of an obligation of the investigator to act in precisely this way. To this end, in both articles the legislator uses the construction "may be released from criminal liability," ultimately leaving the final decision to the discretion of the investigator. The same is seen in the provisions of the Criminal Code on release from punishment, conditional sentence and some other norms that in one way or another mitigate the position of the convicted person. Each of them speaks of the possible, not mandatory, application of such measures. Part 1 of Art. 73 of the Criminal Code is generally worded as follows: "If... the court comes to the conclusion that it is possible to reform the convicted person without serving the sentence, it orders that the imposed punishment be considered conditional." Neither in Art. 73 nor in Art. 79 of the Criminal Code does the legislator specify clear criteria for applying these provisions, leaving this right to the courts. The decision they take must be expedient and meet the requirements of legality and soundness, which follows from the content of the law itself, although it is nowhere stated in it directly.
Thus, the principle of expediency applies not only to the law-making but also to the law-enforcement activity of state bodies. Consequently, expediency is a principle of the entire branch of criminal law, and not of its individual provisions or institutions. In the law-making activity of the legislative bodies of the state, expediency is of particular importance:
In law-enforcement practice, the use of expediency is applied in nature and is often manifested:
The influence of the category of expediency also extends to the processes of interpretation and discretion, and it often serves as the main criterion for applying particular provisions of criminal law.
In carrying out law-making activity, the legislator stipulates in the norms it issues the possibility of alternative actions when making a decision. The law allows the law-enforcer to make a decision independently in each specific situation, but at the same time defines a list of actions beyond which one may not go. In those cases where the law specifies various options for resolving a question depending on specific conditions, or where the resolution of a question within the limits outlined by the law is left to the discretion of the court, the expedient decision will be the one that achieves the purpose of the law.
In this connection, expediency, in its criminal-law understanding, should be based on a certain conformity with principles of both a general legal and a branch-specific nature. This is always a controlled yet reasonable application of the provisions of criminal law, in which the means provided for in it must always correspond to the goals that the legislator originally sets for the criminal law. Only in this case can one speak of the most effective application of the provisions of criminal law and of the reasonableness of the right to law-enforcement discretion granted by the legislator.
At the same time, it must be noted that the operation of the principle of expediency must be accompanied by certain limitations. This will make it possible to avoid arbitrariness on the part of both the law-making and the law-enforcement bodies of the state.
First, expediency must not go beyond the bounds of legality, i.e., compliance with the law must remain the priority, and going beyond its limits in law-making and law-enforcement activity is impermissible.
Second, expediency must be well-founded, i.e., it must follow from the factual conditions of the specific case and be objectively necessary. A well-founded application of the provisions of criminal law means their practically expedient use in the given specific conditions of place and time.
Third, expediency must be applied within limits clearly outlined by the legislator. Individual articles of the Criminal Code of the Russian Federation, the application of which is possible with regard to the provisions of expediency, must contain a strictly established list of alternative actions, adopted at the legislative level and not subject to arbitrary change, which the law-enforcer may use when making specific decisions in criminal cases.
Fourth, expediency must correspond to the goals and tasks provided for by criminal law. It must follow from the needs facing the state and from the goals that the legislator pursues and lays down at the outset in forming both individual norms and the criminal law as a whole. The conformity of expediency with the goals and tasks of the state's criminal policy must also find expression when law-enforcement bodies of the state carry out law-enforcement activity, where the decisions made by officials must be based on the goals embodied in criminal law.
Fifth, expediency must conform to the principle of justice. The activity of both the legislator and the law-enforcer, while undoubtedly being expedient, must be carried out first and foremost in the name of justice.
Thus, the expediency of criminal liability should be understood as the possibility of creating, changing and subsequently applying the provisions of criminal law, proceeding from the social needs that have arisen in society and taking into account the existing general legal principles, tasks and goals, within strictly established legislative limits.
Comments