Столкновение типов рациональности: к вопросу о причинах длительного существования дискуссий по концептуальным вопросам в уголовном праве

Abstract

The analysis of criminal law science by means of a post-non-classical approach is carried out. The subject of the analysis was the regularities of the existence and development of topics and issues that have conceptual significance for criminal law, but do not find their resolution. Such “clusters” of problems, ideas, and the meanings attached to them are presented in the form of discourses that have a very long existence. The set of analysis tools is supplemented by the category “type of rationality”, with the help of which it was possible to detect the nonlinear nature of the development of criminal law knowledge. Having studied the peculiarities of the development of criminal legislation and legal doctrine in the XX century and up to the present, it was concluded that the main type of rationality in the domestic criminal legal consciousness and, accordingly, in the doctrine, is mythological. It is based on a number of myths, mythologems and their corresponding symbols. Even more important is the discovery of a series of attempts to change the type of rationality in criminal law (to political in 1926–1958, to scientific with elements of psychology, pedagogy and sociology, i.e. in general, criminology in 1958–1996), as well as signs of reduction to the mythological type after 1996. Such attempts form a rather original structure of the criminal law doctrine, when the basis is the so-called “hard core” belonging to the mythological type of rationality, and a protective belt is formed around it with inclusions remaining from other types of rationality. The conclusion is formulated that many incessant and sometimes irreconcilable disputes on key issues of criminal law are caused by a discrepancy in the initial ideas of jurists, and sometimes legislators. The introduction of the category of the type of rationality into scientific circulation will contribute to the streamlining of criminal law theory and the harmonization of knowledge about the crime, the criminal, measures of criminal legal impact and other criminal law phenomena.