Analysis of changes in the views of philosophers on criminal punishment and its development in the historical aspect
In this work we will consider and analyze social phenomena, the importance of which is difficult to overestimate, this is punishment, in particular punishment for murder. Traditionally, in history, punishment is considered one of the most complex institutions of law, the understanding of which is possible, including in a philosophical aspect. If you look at punishment through the prism of philosophy, you can determine its theoretical purpose and practical content. Punishment, as a significant social phenomenon, has occupied the minds of people throughout the existence of mankind; not only professional researchers, but also wide sections of the population have shown interest in it. Criminal punishment is an extremely important measure in the fight against crime. Philosophers, from their positions, generally define punishment as a sign of social existence, objectively existing and obligatory. Punishment is a creation of legal institutions, their product. [1, p. 195] Philosophers of all times have tried to find the answer to the question “What should be the punishment”? In this paper we will look at how the philosophical view on this issue has changed throughout history, and how it correlated with the legal acts of the Russian state throughout the development of criminal law, as well as using the example of a crime, namely “murder committed by a group.” persons" we will see how relevant the legislator reacts to the need for a particular norm, and how much the punishment for it corresponds to the philosophical trends of that time, since thinkers of each era reflect the needs and characteristics of society in a particular period of time, and the law must meet the needs of society, be relevant , in order to be active, work as intended, restore social justice and meet the demands of society.
In his teaching “Philosophy of Right,” G. Hegel states that: “philosophical teachings about punishment have their origins in religion, and we find the first attempts to solve the problem posed precisely in religious sources. So, in the book “Genesis” of the Old Testament it is said: “I will require your blood for you, from every beast I will require it, and from the hand of man, from the hand of every brother I will require the life of man. Whoever sheds human blood, human blood will be shed.” In the Gospel, the same thought is expressed in the words: “Vengeance is mine, I will repay.” The same thing, in fact, is in the Koran: “Believers, the law of retribution has been established by you for murder: the free must die for the free and the servant for the servant... woman for woman.” Thus, in many religions, despite their differences, punishment was associated with the idea of \u200b\u200bretribution (punishment) to the criminal for the crime he committed. The same idea dominated philosophy for a very long time. Thus, in Ancient Greece, the idea of retribution of punishment was shared by such philosophers as Pythagoras and Aristotle. During the Middle Ages, the idea of punishment as retribution was developed by the Italian utopian T. Campanella, advocating a correspondence between crime and punishment in the form of talion (“an eye for an eye,” “a tooth for a tooth”). In the city of the Sun he invented, the death penalty or punishment was applied to rapists - an eye for an eye, a nose for a nose, a tooth for a tooth, etc.” [2, p. 147]
We have examined the stage of formation of the doctrine of punishment, after which we will turn to historical evidence of the formation of punishment itself. It would be right to start the story about the formation of legislative responsibility for murder in Russia from the very beginnings of Russian history. With V. Borodin, he claims that from the agreements of the Russian Grand Dukes Oleg and Igor with the Greeks it follows: “that before the Russian truth there was a law that suppressed murder. The contract talks about murder as a crime. Specifically, it was written there: If a Rusin kills a Christian or a Christian kills a Rusyn, he will die in the place where he committed the murder.” [3, p. 17]
Next, it would be correct to turn to the main written source of Russian law, namely the Russian Pravda, which contained criminal law norms. Crimes were called offense in the texts of Russian Pravda. A crime was defined as “any infliction of material, physical or moral harm on anyone.” The first legal act of Rus' does not yet know the age restrictions for criminal liability. However, so do the concepts of sanity. But, in this study, we pay great attention to complicity, which was mentioned in the Russian Pravda, of course, everything was resolved simply: all accomplices in the crime bore equal responsibility, regardless of the role of each in the crime. This is the first mention that a crime can be committed by complicity.
Osipkina L.S. in an article entitled “Goals of punishment in the history of Russian criminal legislation” writes that: “Russian truth distinguishes responsibility depending on the subjective side of the crime. There is no distinction between intent and negligence, but there are two types of intent - direct and indirect. Russian Truth knows only two types of crimes - against the person and property. Each of the genera included quite diverse types of crimes. For murder in a quarrel (at a feast, under the influence of sudden excitement) a fine was imposed; for murder in robbery (determined purely by external signs) - slavery and confiscation of property.”
As we can see, in Russkaya Pravda there was no mention of group murder and complicity, in general, although we can assume that crimes of this kind have already taken place. The goals of punishment of that period can easily be attributed to: retribution, deterrence and compensation for the harm caused by the crime. [4, p. 271]
In the first Code of Laws, as well as in the Council Code adopted in 1649, norms began to appear that distinguished between murder with direct intent and murder with indirect intent. But for us, this act of law is interesting in that simple murder with direct intent was separated from murder with premeditated intent, thereby, one might say, a norm appeared that testifies and establishes a preliminary conspiracy to participate in murder. At this stage, privileged elements of murder are identified, but group murder is not among them. [5, p.127]
Also, in the Council Code of 1649, a list of privileged provisions is developed, including those providing for liability for the murder of a pregnant woman, accordingly we can conclude that the life and health of a pregnant woman have become a specially protected interest. [6, p. 52]
The adoption of the Council Code played a significant role in the development of domestic criminal legislation, but at the same time it did not spell out the goals of punishment, but there were indirect indications of them, in particular the goals of retribution and intimidation. [7, p. 22]
This is where we can end the conventionally identified first stage, where normative legal acts were just going through the process of formation, and philosophical thought was on the verge of a strong development of the theory of punishment.
The theory of punishment as retribution reached its culmination when its content was substantiated by the German philosophers I. Kant and G. Hegel.
I. Kant says: “punishment imposed by the court can never serve only as a means to achieve some good; the criminal must be convicted only because he committed a crime. For a person cannot be treated as a simple thing and sacrificed for any useful purpose; he is guaranteed from this by his innate personality. Therefore, the criminal must be recognized as worthy of punishment before we think about deriving any benefit from this latter. Criminal law is a categorical imperative. Punishment should not be because it is useful, but because it is required by reason itself. The measure of punishment is based on the principle of equality: retribution to equal for equal. All other principles are not strong. Retribution alone can serve as an expression of pure and strict justice. But the principle of equality should not be understood in a literal sense, like the Mosaic Law, which requires retribution eye for eye, tooth for tooth. Equality between crime and punishment should not be external; it is enough if it is such in its effect on the criminal. Only for murder must the death penalty be imposed - a punishment externally identical with the crime - because in this case there can be no other retribution. Deprivation of life can only be balanced by the death penalty.” [2, p. 148]
Punishment is the implementation of justice. It does not set itself any utilitarian goals. Punishment is fair retribution, an end in itself, it is imposed only because a crime has been committed.
Georg Hegel, in his own way, justified punishment as retribution. Hegel argued: “the main thing in punishment is that it is an inevitable consequence of a crime, it is coercion (violence) of the criminal, retribution following the violence committed by him, it is the negation of the negation of the right and the restoration of the latter, punishment even by the right of the criminal. He derived this from the general philosophical idea of law as freedom that he interpreted. In relation to crime and punishment, this complex philosophical foundation is interpreted as follows. A crime is an act of a criminal who denies a right. By the fact of his crime, the criminal will consent to the application of punishment to him. For in his act as a rational being it is concluded that he is something universal, that he establishes a law that the criminal in that act recognized for himself, under which he, therefore, can be brought under as his right.” [2, p. 149] Based on this, Hegel interprets punishment as retribution, but we are not talking about pure retribution, but about retribution as the restoration of a right violated by a criminal.
Lawyers Hugo Grotius and Thomas Hobbes were opponents of the idea of punishment as retribution. Both philosophers believed that the main purpose of punishment is not retribution, but the correction of criminals and the intimidation of others.
The main contribution to the idea of “denial of punishment as retribution” was made by Cesare Beccaria, an Italian thinker and publicist, in his book “On Crimes and Punishments.” F. M. Reshetnikov, who dedicated the book to the works of C. Beccaria, claims about Reshetnikov that: “Beccaria formulated the main provisions of the educational-humanistic direction in criminal law, including in the field of punishment, “The purpose of punishment,” Beccaria believed, “is not in torturing and tormenting a person and not in making an already committed crime non-existent,” but in “preventing the guilty person from again causing harm to society and deterring others from committing the same.” Therefore, only such punishment should be used that, while maintaining proportionality with the crime, would make the strongest impression on the soul of people and would be the least painful for the body of the criminal.” [8, p. 137] Also Reshetnikov Fr. A principle that is as relevant today as it was more than 200 years ago when it was formulated. Thus, Beccaria saw the main purpose of punishment as crime prevention.” [9, p. 97]
In this matter, the central place is occupied by the view of Jeremy Bentham, an English moral philosopher. And Bentham developed the theory of the “utility of punishment.” Bentham proceeded from the fact that: “in principle, any punishment is in itself evil. And in this case, it can be allowed only if and to the extent that it (punishment) is capable of eliminating (atone for) a greater evil. Thus, the utilitarian goals of punishment can be reduced in principle to the correction of the criminal and the prevention of crime." [9, p. 98]
Both the views of thinkers and the results of the works of jurists acquired a more codified format.
P.V. Kropotkin in his book “In Russian and French Prisons” of 1906, says: “one of the most stringent laws is considered to be the laws of the reign of Peter I, the “Military Article” of 1715. consisting of 24 chapters and 209 articles and the “Naval Charter” of 1720, due to the fact that more than 100 crimes were punishable by death, except for unintentional murders. The article wrote about the difference between intent, negligence and chance. It was considered qualified, in particular, the murder of parents, relatives, boss, master and members of the master’s family living with him, the owner, the master, the person to whom the killer owes his upbringing or maintenance, a clergyman, a sentry or one of the guard ranks guarding the emperor or a member of the imperial family." [10, p. 149]
The main goals of punishment in it were deterrence, retribution and elimination of the criminal.
“On January 1, 1835, during the reign of Nicholas I, a code of laws came into force; it was issued in two parts: “On crimes and punishments in general,” “On legal proceedings for crimes.” Accidental murder, without intent, in the absence of the slightest negligence, was not punished. Murder was also not charged if a guard killed a person trying to escape or hide from supervision, or a customs guard killed a person, provided that she acted according to the rules, a sentry, guard or patrol killed a person who attacked with force and in case where the murder was committed in a state of necessary defense. An attempt was made to define the concept of murder: “Violent death caused to another person by wounds, bruises or poisoning is considered murder.” Liability for careless murder was provided. Careless murder was divided into two types: when a person could foresee illegal consequences and when a person committed actions that were not prohibited by law, but should have been careful or could have foreseen such consequences. This type of murder was punished “according to the degree of caution” with imprisonment, a fine or corporal execution, and the perpetrator was subjected to church repentance,” notes the textbook edited by Yu. M. Ponikhidina. [11, p. 67]
The norm of complicity, at this stage, is being developed, accomplices in the murder are now called accomplices, roles are being distributed among the accomplices, now we can distinguish the perpetrator, the instigator and the assistant. But, despite this, this norm does not become a qualified type of group murder. [12, p. 48]
Thus, the pre-revolutionary criminal legislation of Russia did not contain such an aggravating feature of murder as its commission by a group of persons. However, Art. 388 of the Criminal Code of 1903 specifically provided for liability for participation in a community formed for the commission of murder, along with liability for preparation for murder. This approach of the Russian legislator was determined by the fact that Art. 338 of the Code, which provided for liability for participation in a community formed to commit murder, was applied in strictly limited cases.
The authors of the commentary to the draft Code explained this as follows: “Article 388 should be applied, firstly, in cases where those who conspired against their will did not carry out their plan, and secondly, in cases of murder, but only to those of those who agreed to take part in it, who for some reason did not carry out any of the actions that make them accomplices in the strict sense, but only promised their assistance, if, of course, they did not use all the measures in their power to prevent what was planned, since in this latter case they are not subject to any punishment.” [13, p. 91]
In other words, this article of the Code provided for liability for preparation for a crime and for failed complicity in murder. Issues of successful complicity, including in group murder, according to the Code of 1903, were resolved on the basis of the norms of the General Part.
Criminal codes of the RSFSR 1922, 1926, 1960. also did not contain such a qualifying feature as the commission of murder by a group of persons.
For the first time, this aggravating circumstance was provided for by the Law of the Russian Federation of February 18, 1993. In paragraph “n” of Art. 102 of the Criminal Code of the RSFSR established increased criminal liability for murder committed by prior conspiracy by a group of persons. It should be noted that only the commission of murder by a group of persons by prior conspiracy entailed increased liability. Meanwhile, in Art. 17 of the Criminal Code of the RSFSR defined two types of groups possible when committing a crime. In this regard, the question arose: how to qualify a murder if it was committed by a group of persons without prior agreement or by an organized group, since Art. 102 of the Criminal Code of the RSFSR, these types of groups were not named. [14, p. 231] According to A.N. Popov, a murder committed by a group of persons without prior conspiracy, in the absence of other aggravating circumstances, should have been qualified under Art. 103 of the Criminal Code of the RSFSR, i.e. as a “simple” murder. In this case, the commission of a murder by a group of people did not in any way affect the qualification of the crime. It did not influence the assignment of punishment, since it was not included in the list of aggravating circumstances. A murder committed by an organized group required qualification under Art. 17.1 and paragraph “n” of Art. 102 of the Criminal Code of the RSFSR. Qualification of murder committed by an organized group only under Art. 102 of the Criminal Code of the RSFSR was excluded since this article did not provide for liability for murder committed by an organized group of persons [15, p. 198–199]. In the modern Criminal Code of the Russian Federation, such a norm is provided for in paragraph “g” of Part 2 of Art. 105.
To summarize this work, we can conclude that the legislator’s modern view of punishment coincides with the peak of development of this idea among thinkers, and the relevance of norms often does not coincide with the needs and requirements of society, hence punishment may not meet the needs of society and the state.
Literature:
- Koneger P. E. Problems of punishment in the views of ancient philosophers // Bulletin of the Saratov Law Academy. — 2021. — No. 4 (111). — P.195–199.
- Hegel G.V.F. Philosophy of Law. - M.: Sotsekgiz, 1934. - 360 p.
- Borodin S.V. Crime against life. - M.: Lawyer, 2000. - With. 467.
- Osipkina L. S. Purposes of punishment in the history of Russian criminal legislation // Science and modernity. - 2015. - No. 36. - P. 270–276.
- Borzenkov G. N. Criminal law course: Textbook for universities. A special part. T. 3. M.: 2002. - p.470.
- Titov. Yu. P. Reader on the History of State and Law of Russia. M.: - 1997 - p.480.
- Fatkhutdinov A.I. Purposes of punishment and legal regulation of the mechanism for achieving them according to the Criminal Code of the Russian Federation: diss... cand. legal Sci. - Kazan, 2003. p. 22.
- Beccaria Ch.; Per. and entry Art.: Isaev M.M. //On crimes and punishments/. - M.: Legal. Publishing house of the People's Commissariat of Justice of the USSR, 1939. - p. 464.
- Reshetnikov F. M. Beccaria. From the history of political and legal thought. M.: - 1987 p.131.
- Kropotkin P. In Russian and French prisons. St. Petersburg: - 1906 - With. 242.
- History of the domestic state and law in questions and answers: textbook / ed. Yu. M. Ponikhidina; GOU VPO "SGAP". - Saratov: Publishing house of the State Educational Institution of Higher Professional Education "SGAP", 2007. - p. 76.
- Atoyan O.I. History of state and law of Ukraine (from ancient times to the middle of the 17th century): Course of lectures / Ministry of Internal Affairs of Ukraine, Lugan. int. affairs; [Ans. ed. A. N. Litvinov] - Lugansk: RIO LIVD, 2001. - p. 472.
- Criminal Code: Draft of the Editorial Commission and explanations for it. T.VI. St. Petersburg: - 1895. - p. 485.
- Criminal law. General part: Textbook / Ed. L. V. Inogamova-Khegai, A. I. Raroga, A. I. Chuchaeva. — 2nd ed., revised. and additional - M.: Legal, INFRA-M.: - 2008. p. 559.
- Popov, A. N. Murder under aggravating circumstances: textbook / A. N. Popov. - St. Petersburg: "Legal Center Press", - 2003. - p. 563.
*** A criminal can sometimes escape punishment, but not the fear of it. *** Only the punishment that he himself deserves disgraces a person. *** Whoever lives in untruth, God will kill him. *** I demand that criminal penalties be introduced for those who bother with all sorts of nonsense to a person wearing headphones. *** Figure out who is right and who is wrong, and punish both. *** The blatant cruelty of people, not only towards their own kind, but also towards animals... must be punished in a similar way... *** If the gods want to punish a person, they fulfill his wishes. *** Punish your son while there is hope, and do not be indignant at his cry. 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And I don’t even know what I did. *** In a frying pan in hell, everyone fends for himself. ***Being angry and irritated is nothing more than punishing yourself for other people’s stupidities... ***Laugh at the villain’s grief—it serves him right. Vadim Mozgovoy *** Right off the bat I’m running out of imagination what kind of punishment you could come up with for such a joint, so that within the framework of the criminal code it will be remembered for a long time... *** Beloved women are given either as a punishment or as a reward for the unloved! *** God is great in mercy, not in punishment. Konstantin Kushner *** The punishment imposed by a gentle person seems much heavier. Lucius Annaeus Seneca (younger) *** How to punish a wife for cheating, with a belt on the ass or something? *** The law can punish, but it is very weak to protect. *** How many conversations and discussions are there around murderers, rapists and maniacs??? And that’s all you need; “An eye for an eye, death for death,” and then no insane person would want to be one of the above!!! *** The weak are afraid of punishment, and the strong are afraid of shame. *** As a child, from the phrase “Come on, take off your pants!” the punishment began, and now the reward... *** You have to pay for everything, and sometimes death is not the worst punishment. *** A pessimist punishes himself, an optimist rewards himself. Ilya Shevelev *** Others should be beaten with sticks during their lifetime. After death they cannot be punished, they cannot be dishonored: they leave no name. Heinrich Heine *** When you pour out dirt on people, be prepared for it to pour out on you in double quantity. *** No one can be punished for their thoughts! *** Vice does not go unpunished, since being vicious is already a punishment. *** In search of love, you cannot wander at random, otherwise you may never find it. 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By doing this, you will heap hot coals on his head, and the Lord will reward you. *** Evil has a habit of returning to its creator! *** Ignoring without explanation is the biggest punishment and the most terrible torture for those who love... don’t do this to the person who loves you... it hurts him. *** The policy of the stick is especially good where there are too many carrots... *** Do the police punish for insufficient resistance to the devil? Marek *** Castration is a way to keep people from making even bigger mistakes. *** My grandfather always said, looking at the whims of my son: “Give him a potion - REMENEVSKY”))) *** Punishment should teach a lesson to those who do not want to sin. Karl Kraus ***...you will offend me once...you will die twice... *** I watched “News” and realized: I am “for the death penalty”! I don’t want child killers, rapists, pedophiles to have breakfast, lunch, and dinner at my expense! I don’t want them to live... And this is not cruelty - this is justice *** These parents are strange people: first they will punish, scold, and then proudly tell their friends: - My guy did something crazy yesterday! I thought of it...) *** How can I do this to him??? It's horrible. I love him more than life itself... Heartless... But it’s necessary... He must understand... Lips don’t obey... This is too cruel... I decided... “In the corner, son!!! for 5 minutes” *** Only good is not punishable. Dina Dean Statuses about punishment
