APPROACHES TO INTERPRETING THE RELATIONSHIP BETWEEN CRIMINAL LAW SCIENCE AND CRIMINAL LEGISLATION

Abstract

The article argues that interpreting the relationship between criminal law science and criminal legislation as “legal dogmatism” diminishes the role of practicing lawyers as literalists and dogmatists and impoverishes the image of contemporary post-classical legal science. It is proven that authors who hold positivist positions attempt to comprehend the connections between law and moral values, responsibility, etc. It has been established that the problem under consideration involves solving a number of theoretical and practical issues, in particular (identifying the sources to be referred to in order to determine criminal acts and their consequences, the limits of interpretation of the law, the possibility of recognizing a law as unlawful, what should be done to prevent criminal legislation from hindering dynamic social development), etc. It can be stated that approaches to interpreting the relationship between criminal law science and criminal legislation have not been the subject of attention by specialists. It is reasonable to assume that the following factors have contributed most to the issue of the non-identity of these concepts: a) EU case law on human rights; b) the adaptation of national legislation to EU legislation, i.e., the approximation of legislation to the uniform norms and standards of European countries; c) research in the field of comparative law, where the distinction between law and legislation is clearly traced. It is noted that in contemporary publications, these concepts are usually equated, and authors, continuing to characterize criminal legislation, point to its acts and specific features. It has been proven that the jusnaturalistic concept is based on provisions and ideas that have a long history, and its representatives include Socrates, Plato, Aristotle, and other thinkers of Ancient Greece and Rome. Natural law was considered the “higher law” of the moral components inherent in it, in particular: freedom, justice, and equality. From this point of view, law is the content of human life in accordance with the state and development of society. The positions presented – on the one hand, the identification of criminal law and the law, and on the other, their opposition – are extreme, and each reflects only part of the relationship between these two concepts and social phenomena. It is quite natural that the solution to this problem involves recourse to philosophical categories. The internal form is defined as the structure or method of interconnection between the elements of a phenomenon. It is argued that there is a dialectical contradiction between form and content, which can be changed by improving legislation and changing society's perceptions of good and evil, the severity of repression that is permissible to apply to criminals, etc. Approaches to interpreting the relationship between criminal law and criminal legislation should also be considered from the perspective of analyzing such related philosophical categories as “essence – phenomenon,” “cause – effect,” “necessity – chance,” “possibility – reality,” “individual – general,” “part – whole.” Based on this, criminal law reflects the inner essence of phenomena and processes that exist in the sphere of combating crime, the unity of all their properties and connections, and criminal legislation is a phenomenon that is accessible to direct perception and analysis.