Modern Rule-Making as the Basis for the Formation of a New Theory of Criminalization

Abstract

Modern society is undergoing a period of transformation that affects all fundamental spheres, including the sphere of criminal policy and criminal law. The state of instability and uncertainty of social development is reflected, among other things, in the fact that the practice of current rule-making in the field of constructing criminal law prohibitions often demonstrates a clear contradiction to the rules and principles of criminalization that have developed in the domestic legal doctrine at the turn of the 20th and 21st centuries. This phenomenon receives a predominantly negative assessment in the scientific literature. Without denying the substantive criticism, at the same time, it is necessary to raise the question that the steady nature of deviations from the usual standard rules of criminalization indicates the gradual formation of a new theory of criminalization, the contours and content of which have not yet been recognized by science to the proper extent. Based on the study of the materials of the legislative process, the authors substantiate the idea that the modern practice of criminalization is based on a coherent system of doctrinal ideas that go back to the theory of psychological coercion of criminal punishment, the theory of criminal education of the individual, the theory of legal moralism, the theory of preventive criminalization and the theory of social constructivism. In their unique configuration, these theoretical concepts constitute a coherent doctrine that allows for the free, unrestricted construction of criminal law prohibitions in order to ensure the safety of the process of social transformation from any minimum possible and potential threats. It is possible to achieve that by means of the formation and maintenance through the threat of criminal punishment of the necessary moral status of individuals and the moral solidarity of society based on the values that are meaning-forming actors of social transformation.