ІСТОРИЧНІ ТА ФІЛОСОФСЬКІ ЗАСАДИ СТАНОВЛЕННЯ ТА РОЗВИТКУ ПРИНЦИПУ ЗАКОННОСТІ В КРИМІНАЛЬНОМУ ПРАВІ

Abstract

The system of strong rules of imposing penalties is the main characteristic of the field of criminal law in modern democratic states. Incorrect implication of the criminal law provisions will directly affect human rights and freedoms. The issues of criminal law correspondence with the human rights concept and the rules of interpreting criminal law provisions are still actual even for the states with sustainable democratic development. All these problems are covered by legality in the rule of law concept. Historical method is quite useful in legal research, especially in untangling legal problems, which have roots in the past. Raising and development of legality through centuries will help us to fully interpret values, which are the grounds of this principle. In the XXI century B.C., the law on criminal liability contented one beautiful rule – “if you act illegally – we can kill you”. Fortunately, criminal law provisions are changing through time. Arbitrariness of the sovereign, vague in the implication of penalty, uncertainty in the criminal law provisions – all these problems were the main engines for the liberal revolutions in the XVII century. As a result, modern nations have similar meaning of the legality in criminal law, as in the French Declaration of the Rights of Man and of the Citizen of 1789 or the Constitution of the United States of 1787. Legality in criminal law consists of such main values as freedom and individual autonomy, democracy, separation of power as well as the rule of law. The works of philosophers in the Enlightenment era (such as Montesquieu, Hobbs, Feuerbach, Beccaria) have had a huge impact on the development of these values and can help us to find modern interpretation of the meaning of legality. This paper provides us with the reasoning, why the above values are important for understanding legality as the principle of criminal law. Legality not only brings us protection from the unlawful legal provisions. There are examples in history, when the law allowed to commit atrocities. The decisions of International Military Tribunal at Nuremberg show us the way to resolving this dilemma and import us the general principles of law recognised by civilised nations as a ground for criminal liability. Our results illustrate that the legality in criminal law is the scope of provisions, which establish special requirements to the lawmaking process (including the elements of substantive and procedural democracy), the process of interpreting the criminal law provisions as well as the process of applying the law in every individual case.