CC BY
16Branches and Institutions of the Law Отрасли и институты права
UDC 343.231
DOI: 10.37399/2686-9241.2020.4.176-196
Culture and Criminalisation: Interdependence and Mutual Influence
Natalya V. Genryh
North Caucasian Branch, Russian State University of Justice,
Krasnodar, Russian Federation
For correspondence: ngenrih@mail.ru
Abstract
Introduction. The relationship between criminal law and culture does not often attract the attention of domestic specialists. Few of the available studies are devoted primarily to the protection of cultural values. Much less often we find works devoted to the socio-cultural conditioning of the criminal law prohibition. However, the integral complex of issues of the relationship between the criminalisation of socially dangerous acts and culture has not yet been presented as an independent object of study, although it is an important research field of criminal-political research. Theoretical Basis. Methods. The research is based on two basic theoretical concepts. Firstly the concept of criminalisation of socially dangerous acts as developed in criminal law science and secondly, the normative theory of culture. Research methods used were analytical, axiological, and systemic.
Results. Criminalisation, being a cultural phenomenon in itself, is closely related to other cultural phenomena and processes, which makes it possible to consider criminal law as one of the means of supporting cultural norms. Processes of criminalisation are not only directly influenced by cultural stereotypes and political culture in terms of determining the content of a criminal law prohibition. Criminalisation also has the opposite effect on culture. In particular, it can be used to supplant cultural norms that do not correspond to modern ideas about an ideal society, to preserve the norms and rules that it needs at the moment, to establish cultural norms, conceivable as promising models of social structure, to block individual cultural innovations. Discussion and Conclusion. The study of the relationship between criminalisation and culture opens up broad prospects for discussing the quality of criminal law and normative modeling of socially approved behavior. It serves as additional evidence that crime is a social and cultural construct, that is, an act with relative danger. This is an assessment that can vary with the dynamics of cultural norms. It also proves the inadmissibility of the gross use of legal means (secondary elements of culture) for the formation and imposition of cultural standards.
Keywords: culture, political culture, criminalisation, criminal policy, criminal legal support and promotion of cultural norms
For citation: Genrikh, N.V., 2020. Culture and criminalisation: interdependence and mutual influence. Pravosudie/Justice, 2(4). Pp. 176-196. DOI: 10.17238/2686-9241.2020.4.176-196
© Генрих Н.В., 2020
Культура и криминализация: взаимообусловленность и взаимовлияние
Н.В. Генрих
Северо-Кавказский филиал, ФГБОУВО «Российский государственный университет правосудия», г. Краснодар, Российская Федерация ngenrih@mail.ru
Аннотация
Введение. Взаимосвязь уголовного права и культуры не так часто привлекает внимание отечественных специалистов. Немногие имеющиеся исследования посвящены по преимуществу вопросам охраны культурных ценностей, гораздо реже встречаются сочинения, посвященные социально-культурной обусловленности уголовно-правового запрета. Однако целостный комплекс вопросов взаимосвязи криминализации общественно опасных деяний и культуры пока еще не представлен самостоятельным объектом изучения, хотя являет собой важное исследовательское поле уголовно-политических исследований. Теоретические основы. Методы. Основой исследования выступили две базовые теоретические концепции: разработанная в уголовно-правовой науке концепция криминализации общественно опасных деяний и нормативная теория культуры. Методы исследования: аналитический, аксиологический, системный.
Результаты исследования. Криминализация, будучи сама по себе культурным феноменом, тесно связана с иными культурными явлениями и процессами, что позволяет рассматривать уголовное право как одно из средств поддержки культурных норм. Процессы криминализации не только испытывают на себе прямое влияние культурных стереотипов и политической культуры в части определения содержания уголовно-правового запрета. Криминализация имеет и обратное влияние на культуру. Она, в частности, может быть использована для вытеснения культурных норм, не отвечающих современным представлениям об идеальном обществе, для сохранения норм и правил, которые ему необходимы в текущий момент, для утверждения культурных норм, мыслимых в качестве перспективных моделей общественного устройства, для блокирования отдельных культурных новаций.
Обсуждение и заключение. Исследование вопросов взаимосвязи криминализации и культуры открывает широкие перспективы для обсуждения качества уголовного закона и нормативного моделирования социально одобряемого поведения. Оно служит дополнительным доказательством того, что преступление есть социальный, культурный конструкт, то есть деяние, обладающее относительной опасностью, оценка которая может варьироваться по мере динамики культурных норм. Оно же доказывает недопустимость грубого использования правовых средств (вторичных элементов культуры) для формирования и насаждения культурных нормативов.
Ключевые слова: культура, политическая культура, криминализация, уголовная политика, уголовно-правовая поддержка и продвижение культурных норм
Для цитирования: Генрих Н.В. Культура и криминализация: взаимообусловленность и взаимовлияние // Правосудие/Justice. 2020. Т. 2, № 4. С. 176-196. DOI: 10.17238/26869241.2020.4.176-196
Introduction
T he criminalisation of socially dangerous acts, constituting the most important element of the content of the state's criminal policy, is influenced by many different factors. Amongst them, cultural factors occupy a special place. The relationship between culture and criminalisation is a complex and multifaceted
phenomenon that, it seems, has not yet been sufficiently studied in science. It demonstrates a certain gap in the understanding of the very content of the determinant connections, factors influencing criminalisation, directions and consequences of such influence. The noted circumstances justify the statement of the problem of understanding the mechanism of the influence of cultural factors on the criminalisation of socially dangerous acts as an independent subject of research, the analysis of which, as far as possible, will be devoted to the following.
Theoretical Basis. Methods
We believe it is necessary to make two preliminary observations of a technical and terminological nature so that what is presented below is adequately understood.
Firstly, for the purposes of this publication and in the interests of ensuring the comprehensiveness of the study of the stated topic, the term "criminalisation" will be used in its broad interpretation. Thatis, in the fom acceptable to modern science, as a generalising one that encompasses both the criminalisation and the penalisation of acts, also as a process, and further as a result of the relevant activities of the law-making body.
Secondly, by the term "factors" we mean all the phenomena of the cultural world that directly or indirectly affect criminalisation, regardless of whether they act as causes, conditions of prerequisites or reasons for establishing a criminal law prohibition.
Such a broad approach, in our opinion, will contribute to the complexity of the analysis, allowing the creation of a holistic idea of the mechanism and directions of the influence of cultural factors on criminalisation. It will set a certain "framework" within which several areas of analysis can be identified, each of which can claim the status of a subject of independent scientific research.
Results
A) Criminalisation as a sociocultural phenomenon
To begin with, the criminalisation of acts at the level of the criminal law is in itself an unlimited cultural phenomenon. This is an unconditional achievement of human civilization, the value of which is determined by the value of law and law as such. We can refer to the well-known formula of Professor M.S. Greenberg, according to which the emergence of criminal law replaced blood feuds with "the introduction of' graphite rods "into the 'nuclear reactor' of unrestrained and irreconcilable collisions, giving rise to new collisions by means of chain reaction, which is incompatible with the safety of society" [Greenberg, M.S., 1992, p. 58].
The cultural significance of criminalisation manifests itself in several aspects.
First, in contrast to the first taboos reflected in customs and ancient canons of law designed to protect the natural foundations of the life of human society, criminalisation as a conscious activity has as its purpose the protection of va-
rious aspects of the functioning of society. As a result, the elevation of criminal-isation to the rank of a management activity, carried out in a specific procedure and form by authorised bodies, has brought security guarantees of all the positive achievements of mankind into people's lives - from property rights to international cooperation, becoming an indispensable companion of social progress.
Secondly, criminalisation is now included in a wide arsenal of social administration tools, contributing not only to the protection of existing social vaues, but also to the establishment of new social values - as well as educating citizens in the spirit of their observance and respect. This allows the use of criminal rule-making processes not only for the purpose of protecting "what is", but also for the formation of "what is needed" or "what we would like".
Thirdly, criminalisation, being precisely a means of management, has acquired an intrinsic value as a kind of procedure for recognising acts as socially dangerous, regardless of what kind of criminalisation is in question. Compliance with the formal procedure began to act as a kind of guarantor of the legitimacy of the restrictions developed by the state. It is no coincidence that the Constitutional Court of the Russian Federation in its numerous decisions and rulings repeatedly reiterates that the federal legislator is free to establish criminal liability at its discretion (of course, with the proviso that the constitutional principles of the relationship between the individual and the state in the sphere of criminal law are observed).
Fourthly, criminalisation, traditionally is understood not only as a process, but also as a result of the establishment of a criminal law prohibition, making specific requirements for this result, for the model of the prohibited act. The prohibited act must be socially dangerous, culpably perfect, relatively widespread, not be a form of realisation by a person of his rights, nor create dispro-portionality and exemptions in equality.
The noted socio-cultural characteristics of criminalisation indicate that it acts as an integral, non-excludable, and in the historical perspective - an eternal companion of the development of society, an essential component of its legal and generally intangible culture. These characteristics also give rise to significant dialectical contradictions that determine the very movement of crimi-nalisation, its place in legal processes and attitude towards criminalisation. It is appropriate here to speak of at least two such contradictions:
Firstly, criminalisation as a means of protecting established values to a certain extent opposes criminalisation as a means of promoting new social standards (criminalisation-protection against criminalisation-education), and
Secondly, criminalisation as a procedural form of establishing a prohibition may come into conflict with criminalisation as a result of the recognition of an act as criminal (criminalisation form versus criminalisation-content).
These contradictions are insurmountable (both by virtue of the fact and as well as due to how they can be recognized as dialectical). At the two poles of these contradictions, there are, respectively, two polar models of criminalisa-tion. On the one hand, the criminalisation of acts dictated by the need to establish new social standards; on the other, the criminalisation of acts aimed at supporting exclusively established social norms. Note, however, that each
model admits, in compliance with the established procedure, the criminalisa-tion of acts that do not have a sign of public danger in the mass consciousness. In one case, because citizens do not see the act as a deviation from the social standard in general, and in the other, because the deviation does not seem significant.
B) Political culture and criminalisation
The presented models of criminalisation and the contradictions associated with them are also correlated with the idea of criminalisation as a certain manifestation of modern parliamentary culture (not in its narrow meaning, as a culture of public debate, but in a broad context - as part of the political culture of society). Since the adoption of criminal laws is the exclusive prerogative of parliament, the processes that are associated with its formation and functioning, by definition, cannot but affect the phenomenon of criminalisation. The connection between parliamentary culture and criminalisation is also multifaceted and manifests itself in several directions.
First, parliament is called upon to reflect the opinions and views existing in society on all of the most important issues of life, including issues of criminal law. In this regard, the process of forming the parliament has an unconditional influence on criminalisation. Low electoral activity of the population, an unscrupulous election campaign, election fraud and scandals - all these reflect the lack of recognition or disregard for the socio-cultural value of the parliament, and as a consequence, reduces the level of legitimacy of its criminal law enactment...
Secondly, the content of criminalisation processes is directly determined by the composition of parliament and the alignment of political forces in it. Today parliamentary culture is moving away both from a one-party system and the associated monopoly of one view of the interpretation of society and lawmak-ing. From an extreme multi-party system, an entire spectrum of parties operating in the country is able to organise anarchy in parliament. As a rule, in modern democratic culture in parliament, all forces are reduced to two main poles, conditionally - liberal and conservative, the competition between which is reflected in the content of criminalisation. And only a high level of parliamentary culture can guarantee that the views of that part of the ideological and political forces that do not have parliamentary status are taken into account in criminal policy.
Thirdly, the basis of modern political culture is the independence of the branches of government, the independence and insubordination of the parliament. It takes on a special meaning when it comes to criminalisation, since the parliament cannot and should not be a "blind" registrar of legislative initiatives of other branches of government (primarily the executive) and the transformation of these ideas into law. In the conditions of Russian reality, this side of the problem requires separate and special attention, taking into account in what order, with what speed, and at what level of detail the discussion, and with what changes any criminal law initiatives on the part of the President and the Government "pass" in parliament.
Fourth, is the level of culture of the parliamentarians themselves. In this case, we are talking not only about personal, moral qualities, but also about a wide range of skills and principles that make it possible for a deputy in their work to take account of a representative body and the professional judgments of specialists in the field of criminal law and criminology. Thus they can combine the independence of their own parliamentary assessment of a particular situation with the assessment of narrow specialists-professionals, to see legal problems, ways and consequences of their solution in the system unity [Babaev, M.M. and Pudovochkin, Yu.E., 2013].
Thus, only a truly independent, legitimately formed professional parliament, effectively and instrumentally reflecting the entire spectrum of political positions of society, is a necessary political and cultural prerequisite for the proper criminalisation of socially dangerous acts.
However, the connection between political culture and criminalisation does not end there. There are at least two interrelated aspects that reflect the ideas of the separation of powers that have developed simultaneously in society. These are the cultural and political and legal features of the functioning of the branches of government on the one hand, and the level of lawmaking culture (the culture of legislative technology), on the other.
We are talking about a relatively private, but in the scale of the functioning of criminal law, an extremely important problem, namely the degree of the detailing of criminal law regulations. Here the situation is both complex and also simple, which in a simplified form it can be presented as follows. The freer and more independent the court is, the higher the level of trust exists in the judicial system. The more powers and possibilities in terms of interpretation of the criminal law the court has, the less need for the parliament to create casuistic, detailed instructions. Accordingly, on the contrary, positioning the court as a special kind of executor of the legislative will of the parliament requires the creation of clear frameworks of its activities that do not allow freedom of interpretation, with a minimum of evaluative concepts and dispositive instructions. Of course, such a formulation of the problem does not exclude noting the general requirements for the certainty of a criminal law prohibition and other related parameters of its quality. It only shows - as succinctly as possible - that the criminalisation of socially dangerous acts (at least as a result, as an external form of expressing a criminal law prohibition) is largely determined by the general parameters of the political culture of society and the current configuration of the separation of powers.
C) Culture and content of criminalisation
The foregoing reflects, for the most part, the cultural conditions for the crim-inalisation of socially dangerous acts. This includes the background against which this complex socio-legal process is taking place, and its preconditions. At the same time, culture intensively manifests itself at the level of determining the content of criminalisation, establishing the limits of what is permissible and unacceptable in society. Culture as a whole can be seen as a "prohibition" that restricts or displaces animal instincts from human behaviour in order to
ensure the collective existence and interaction of people. In the field of criminal law, it is worth exploring this idea in detail and talking about the culture of the prohibition itself.
Any prohibition presupposes the presence of the subject and the limits of the prohibition (which is formally expressed in the disposition), as well as its means (enshrined in the sanction). Accordingly, the influence of the cultural attitudes of society are reflected in all these elements: what is prohibited, to what extent it is prohibited and the threat of sanction for what is prohibited.
In the first case, the mechanism of connection between culture and crimi-nalisation involves the establishment of a criminal law prohibition only in relation to those acts that are incompatible with the dominant type of culture and cultural values. The question of the types of culture - a complex cultural problem - cannot, by definition, be included in the subject of our analysis. In this connection, it seems permissible to use the developments in cultural studies to demonstrate the considered connection between culture and criminali-sation. For example, citing the well-known doctrine of sociocultural dynamics, developed in the works of P.A. Sorokin [Sorokin, P.A., 2006, pp. 540-545]. His concept presents three types of culture, successively replacing each other: sensual (which is characterised by materialism, determinism, the domination of material values, and the relativism of these values), ideational (with its inherent idealism, indeterminism, domination of spiritual and absolute values), and idealistic (harmoniously combining both previous types of culture).
Accordingly, when culture moves from a sensual to an ideational form, crim-inalisation is accompanied by an increase in the number of prohibited acts, most of which are of an ideational nature, that is, they are actions that defile ideational (absolute, higher) values (most of these crimes are left by crimes against religion and moral principles)1.
The transition from the ideational to the sensual form of culture gives rise to processes of the opposite nature. In "sensual" criminal codes, for the most
1 In modern conditions, examples of such ideational crimes can be recognised as the destruction or damage of military graves, as well as monuments, steles, obelisks, other memorial structures or objects that perpetuate the memory of those killed in the defense of the Fatherland or its interests, or dedicated to the days of military glory of Russia. This is contrary to Article 243.4 of the Criminal Code of the Russian Federation. Another example is the carrying out of activities on the territory of the Russian Federation by a foreign or international non-governmental organisation, in respect of whom a decision has been made to declare its activities undesirable on the territory of the Russian Federation (Article 284.1 of the Criminal Code of the Russian Federation). The category of such acts should also include the actions for attempting to portray the Russian Federation as being criminal, that is, by means of the "dissemination of knowingly false, inaccurate or distorted information about the political, economic, social, military or international situation in Russia, and the legal status of citizens in Russia" (Bill No. 1111185-6 "On Amendments to the Criminal Code of the Russian Federation (in terms of establishing criminal liability for discrediting the Russian Federation"). URL: http://asozd2.duma.gov.ru (date of access 27.04.2020).
part, actions are criminalised that, from a hedonistic-utilitarian point of view, are considered dangerous for the hedonistic-utilitarian values of a given society and especially its command and control structures2.
At the same time, in a comparative relationship, "ideational" criminal law tends to be much more severe and strict than "sensible" criminal law. This is beacause the requirements of ideational culture and its laws to human behaviour are generally higher and less free and tolerant, and the functional purpose of this type culture is to curb loose sensual inclinations and passions and instill new forms of behavior.
The dynamics of cultural values sets another vector of the influence of culture on criminalisation. It is more visible and has recently caused much more discussion of a criminal law nature. The point is that the growing importance of a particular cultural value in public opinion and official axiol-ogy forces the state to reconsider the means of legal protection of such values. Then the less harsh means are replaced by precisely the criminal law means, which provide the maximum amount of coercion possible in given specific conditions to maintain a particular value. Formally, this is most often reflected in the processes of replacing administrative sanctions with criminal ones There is a transference of an administrative offense into the category of crimes, or designing criminal law norms with an administrative prejudice. (We can recall here situations related to the criminalisation of beatings, driving a vehicle in a state of intoxication, and violation of orders regarding the organisation of mass events.)
From a legal point of view, this possibility was officially confirmed by the Constitutional Court of the Russian Federation. They stated "The constitutional requirements of justice and humanism predetermine the need for the differentiation of legal responsibility depending on the significant circumstances affecting the choice of one or another measure of state coercion. Therefore, providing for persons who have committed an offense a specific type of legal liability, the federal legislator is obliged to correlate it with the nature of the offense, the danger to the values protected by law, the personality and degree of guilt of the offender, thereby guaranteeing the adequacy of the resulting consequences to the harm caused as a result of the offense. In cases where the measures of public law cease to correspond to social realities, this leads to a weakening of protection of constitutionally significant values or, alternatively, to excessive use of state coercion. The federal legislator has the right to ensure their alignment with the new social realities,
2 The category of such crimes in modern law includes those provided for in Art. 322.2 of the Criminal Code of the Russian Federation "Fictitious registration of a citizen of the Russian Federation at the place of stay or at the place of residence in a dwelling in the Russian Federation and the fictitious registration of a foreign citizen or stateless person at the place of residence in a dwelling in the Russian Federation", Art. 322.3 of the Criminal Code of the Russian Federation "Fictitious registration of a foreign citizen or stateless person at the place of stay in the Russian Federation" and some others.
while observing the constitutional principles of equality, justice and humanism."3
From a cultural point of view, the processes of replacing administrative responsibility for a particular act with criminal responsibility reflect, on the one hand, the dynamics of the protected values themselves, an increase, or on the other hand, a decrease in their significance; and secondly, the dynamics of culturally determined perceptions of the acceptable amount of official coercion to maintain and protect these values.
Closely related to this reasoning is the question of the cultural limits of criminal interference in human life. In the cultural dimension, it goes back to the ideas of liberalism and statism, democracy and totalitarianism, "Western" and "Eastern" type of relationship between the individual and the state. This complex "tangle" of social and cultural attitudes and relationships leaves its mark on the processes of criminalisation.
In this respect, criminalisation can be presented as a "line of dividing line" between individual freedom and state freedom. On the one hand, it defines the limits beyond which human behavior poses a threat to the safety of other individuals, society and the state as a whole, and on the other, it sets the boundaries that prevent criminal law from being reborn into a means of total control over "otherness". The Constitutional Court of the Russian Federation expressed itself quite definitely on this issue in a number of its decisions, making such notable statements:
- "fixing and changing the composition of offenses and measures of responsibility for their commission, the federal legislator is bound by the criteria of necessity, proportionality and proportionality of the restriction of the rights and freedoms of citizens to constitutionally significant goals arising from the Constitution of the Russian Federation";
- "types of legal liability and related penalties must have a reasonable deterrent potential sufficient to comply with the relevant prohibitions (restrictions); otherwise, their application will not meet the purpose of state coercion, which, in the meaning of the Constitution of the Russian Federation, consists mainly in the preventive use of its inherent legal means to protect the rights and freedoms of man and citizen, other constitutionally recognised values of civil society and the rule of law";
- "the implementation of constitutional principles in the sphere of criminal law regulation presupposes, on the one hand, the use of the means of criminal law to protect citizens, their rights, freedoms and legitimate interests from criminal encroachments, and on the other, the prevention of excessive restriction of rights and freedoms when applying criminal measures - legal coercion. Accordingly, the nature and content of the measures established by the crim-
3 Resolution of the Constitutional Court of the Russian Federation of February 10, 2017 No. 2-P "In the case of checking the constitutionality of the provisions of Article 212.1 of the Criminal Code of the Russian Federation in connection with the complaint of citizen I.I. Dadin" // Bulletin of the Constitutional Court of the Russian Federation. 2017. No. 2.
inal law should be determined based not only on their conditionality by the goals of protecting constitutionally significant values, but also on the requirement of the adequacy of the consequences they generate (including for the person against whom these measures are applied) to the harm that was caused as a result of criminal acts."4
It is a reasonable balance between the grounds and means of criminal legal protection that is called upon to ensure the parity or equality of the individual and the state in their mutual relations. This equality reflects modern democratic ideas about the relationship between the individual and the state, their mutual recognition of the value and dignity of each other, mutual responsibility to the present and future generations for the stable and sustainable development of society. It must be admitted that not a single society possesses a universal standard of "balance", and in each of them the parameters of this "balance" are very flexible in time. Such a "balance" cannot be represented as a constant for all types of relationships between the individual and the state - in the economy, social, spiritual sphere, etc. "Balance" is a certain general ideal, a certain goal, to achieve that which the state and the individual will strive for throughout the history of their mutual existence. It is significantly influenced by mental attitudes, historical traditions, the internal political situation, the external environment, international pressure, and regulation.
In the cultural dimension, ideas about the limits of mutual restrictions of the state and the individual are close to arguments about the homeostasis of the social system. The unity and diversity of human behavior is akin to the unity and diversity of biological species. Diversity, "otherness", deviation from the usual standards, and patterns of behaviour are just as necessary a condition for the development of society as the presence of the standards themselves, around which the largest array of human behavioural acts is located. If the unity of behaviour ensures the stability of society, then deviations from standards create opportunities for its development, including innovation. Proper criminalisation is precisely designed to ensure the optimal balance between the standard and deviation from it, between freedom and security, between traditions and innovations, a balance that is so necessary to ensure sustainable development of society.
4 Resolution of the Constitutional Court of the Russian Federation of April 25, 2018 No. 17-P "In the case of checking the constitutionality of paragraph 2 of the Notes to Article 264 of the Criminal Code of the Russian Federation in connection with the request of the Ivanovo Regional Court" // Collected Legislation of the Russian Federation. 2018. No. 19. Art. 2812. Resolution of the Constitutional Court of the Russian Federation of April 20, 2006 No. 4-P "In the case of checking the constitutionality of part two of Article 10 of the Criminal Code of the Russian Federation, part two of Article 3 of the Federal Law 'On the Enactment of the Criminal Code of the Russian Federation', Federal Law 'On Amendments and Additions to the Criminal Code of the Russian Federation' and a number of provisions of the Criminal Procedure Code of the Russian Federation concerning the procedure for bringing court decisions in line with the new criminal law, eliminating or mitigating responsibility for a crime, in connection with complaints from citizens A.K. Aizhanova, Yu.N. Alexandrov and others" // Collected Legislation of the Russian Federation. 2006. No. 18. Art. 2058.
Achieving such a balance also presupposes the use of the means of maintaining it adequately to modern culture. In our case, we are talking about criminal sanctions, the measures of a criminal law nature and criminal punishment.
It has long been proven and not disputed in science that criminal punishment itself is a cultural phenomenon [Bibik, O.N., 2013]. In the field of crim-inalisation of socially dangerous acts, this circumstance manifests itself in a very multifaceted way, notably:
- criminal punishment is today the only permissible form of legal violence, the institutionalisation of which reflects the rate of human civilisation on the reduction and elimination of violent forms of conflict resolution. (It is no coincidence, even in a situation of violation of purely private interests, when a criminal case is initiated only on the basis of the victim's complaint, that the right to punishment is possessed only and exclusively by the state as a public authority);
- criminal punishment reflects the prevailing notions in society about the sources of power and the most significant rights for a person, influencing which one can expect changes in his behaviour (the evolution of measures of a criminal law nature from corporal punishment to property and social restrictions is a confirmation);
- criminal punishment as a markedly punitive means does not fully correspond to modern ideas about the culture of criminal law in view of the fact that it does not guarantee an adequate level of achievement of the goals of correcting convicts and preventing new crimes. Iin connection with this the state, on the one hand, is forced to limit its use, and on on the other hand, - to look for more effective and efficient means of protecting social values from socially dangerous encroachments.
The last circumstance is especially important. The «crisis of criminal punishment, (about which much has been written recently in a most convincing way), dictated, among other things, by the expansion of social ideas about freedom against the background of a humanistic reduction in the scope of the use of punishments and the severity of their types. This stimulates, if it is permissible to put it this way, the sphere of criminal law.
Its essence can be described as a transition from "criminal-repressive" law to "criminal-preventive" law, within which the greatest significance is gained not so much by the measures of classical criminal punishment as by the so-called "other measures of a criminal-legal nature". This is focused mainly on the identity of the offender and designed not so much to punish as to prevent the commission of antisocial acts [Gurinskaya, A.L., 2019]. These processes leave their mark on the criminalisation of socially dangerous acts, largely changing both the prevailing ideas about public danger and its level sufficient for criminalisa-tion, and about other parameters of a criminal act, including ideas about guilt and the subject of a crime.
D) Criminalisation as a factor in the formation of culture
The criminalisation of socially dangerous acts, if we consider it from the point of view of cultural processes taking place in society, is a cultural phe-
nomenon that is not only determined by itself by various cultural factors, but also by being included in the general cultural context of the development of society. It directly affects other cultural processes and phenomena. This mutual influence is predetermined by the very essence of criminalisation and culture.
With a variety of existing approaches, for the purposes of our analysis, it is fair to consider culture from the point of view of the normative-value approach as a set of rules that prescribe a certain behaviour to a person with his inherent experiences and thoughts. The sociological meaning and purpose of culture in this understanding is quite definite: it organises the life of people and has a managerial impact on society. Culture is a system of values, symbols and meanings recognised and shared by society, which is comprehended by a person in the process of socialisation and acculturation throughout his life, and which is transmitted from generation to generation. At the same time, it has already become a stable tradition of the value approach to single out institutional and non-institutional norms, correlating them with the official and unofficial culture. Institutional and official culture are values and norms and rules of behavior that are officially approved by society and its institutions and are supported by the power of social sanctions, including (and perhaps primarily) legal ones. Non-institutional norms include those rules of conduct that are not official (although they do not necessarily contradict the norms of official culture) and are largely based on the strength of public opinion, customs, mores, and habits.
Criminalisation, as the process of the official recognition of certain behavioural acts as socially dangerous, with the establishment of criminal sanctions for them, is directly included in the process of standardising human behavior. It is aimed at maintaining or correcting social norms, while invading the field of both institutional and non-institutional culture, contributing to the translation of some cultural norms and the elimination of others. Criminalisa-tion creates a special category of cultural norms - the norms of criminal law, which in a specific way (by means of prohibition) build the permissible volatility of the standard of social behavior, defining the most extreme, and therefore absolutely inadmissible manifestations of it. Thus, we repeat the opinion of A.A. Ter-Akopova, "the criminal law reflects, as the classic of Marxism put it," the moral physiognomy of society", and not only by indicating the acts committed, their content, but also by the very fact of such an indication" [Ter-Ako-pov, A.A., 2003, p. 447].
Considering the question of the impact of criminalisation on culture, it is advisable to highlight two main aspects. They can be characterised as static and dynamic.
E) The static aspect of the impact of criminalisation on culture
In static terms, we are talking about the relationship of criminalisation with official and unofficial culture.
First of all, it must be recognised that criminalisation can support the norms and values of exclusively official culture. Unofficial culture (underground, subculture, counterculture), by definition, cannot become an object of criminal le-
gal protection. However, it is under the tireless scrutiny of official power structures so that in the process of monitoring non-institutional norms and their influence on public behaviour at the right time, with the necessary accuracy and care, select those that pose a threat to the individual, society or the state, and are banned in the process of criminalisation. The impact of criminalisation on unofficial cultures can only be either prohibitive or tacitly tolerated.
The norms and values of official culture are a different matter. They are recognised as "official" because they are supported and promoted by the public majority and its representatives in the power structures of the state. Such norms, of course, cannot be prohibited, on the contrary, they confirm their importance in the process of criminalisation, and are sanctioned, preserved and broadcast. At the same time, of course, not all norms and values of official culture are supported in the course of criminalisation. Criminalisation is included in the general process of state labelling of cultural norms with legal sanctions, which also involves the creation of administrative-legal and other legal prohibitions. In this connection, the selection of the norms of official culture specifically for criminalisation support acquires a special cultural and a criminal-political significance.
This selection of criminally protected norms of official culture, as well as the selection of norms of unofficial culture that require a ban, is a two-pronged process. This is subordinate to more general principles, rules that can be collectively referred to as standards for the criminalisation of socially dangerous acts. These standards in themselves form a certain set of cultural norms, constituting a "culture of criminalisation». They are, of course, subject to dynamics, but at each particular moment of time they form a certain set of requirements that include various political, economic, social and other aspects. The key requirement in this case is the requirement of social danger of the prohibited behavior, the study of which is one of the most important sections of criminal law science [Demidov, Yu.A., 1975; Chubarev, V.L., 1982; Malt-sev, V.V., 1993; Chestnov, I.L., 2015; Babaev, M.M. and Pudovochkin, Yu.E., 2017, pp. 342-364; Ivanov, N.G., 2016].
F) The dynamic aspect of the impact of criminalisation on culture
The relationship between criminalisation and culture, viewed in a dynamic aspect, appears to be more complex and ambiguous. It reflects the involvement of criminalisation in the permanent process of cultural dynamics, which is accompanied by the emergence, assertion, withering away and elimination of cultural norms and values. This area of analysis largely reflects the managerial nature of criminalisation, specifically its ability to organize and change people's behaviour.
The dynamic impact of criminalisation on culture takes place in four main directions:
- support for the already established cultural norms;
- promoting new cultural norms;
- the displacement of old cultural standards, and;
- blocking cultural innovations.
All of them are closely interconnected, develop in parallel, and intersect, but for research purposes they may well be considered as relatively independent processes.
1. Maintaining established cultural norms is, chronologically, the very first way that criminalisation influences culture. Criminal law is formed by prescriptions, which go back to ancient times and belong to the category of the first social regulators. At the heart of their emergence is not only the need to resolve the ideological problem of good and evil, but also the natural human desire for security. The animal instinct for self-preservation in the process of a single process of anthropo-sociocultural genesis was transformed into a perceived need to ensure not only personal, but already collective security. This was exactly satisfied first in the verbal, and then in the written norms that legitimised the use of means of collective coercion against violators of this order of relations. This was assessed as being fair and safe from the standpoint of a particular society at a particular time. [Henrikh, N.V., 2011, p. 81].
The processes of maintaining the established cultural norms by means of criminal law correlate with the most ancient prohibitions - for example, do not kill, do not harm health, do not allow incest, do not violate someone else's property and other prohibitions that have formed the cultural norms themselves since primitive times. It can be considered a convincingly proven fact that the formation of such cultural norms, which form the basis of human society, proceeded with the direct participation of the factor of prohibition. It was through the prohibition that such norms were formed. It is another matter that such a prohibition itself, a taboo, from the familiar to us modern ideas about law as a product of exclusively state-organized activity, has little relation to criminali-sation. Taboo and criminalisation are related, but are still different processes: taboo, as a mostly spontaneous process of establishing a ban and maintaining it by the force of public sanctions, formally precedes criminalisation as a deliberately state-controlled process of constructing criminal law norms and sanctions.
It is in this context that we can consider the judgments of V.K. Andriano-va and Yu.E. Pudovochkin, "The normative and regulatory experience (which is a system of primitive customs and regulation of people's actions by means of general rules, and the establishment of prohibitions on the commission of certain actions supported by a sanction, their severity and obligation, as well as the application of punishment determined by the degree of public danger of the committed act) was, upon reaching the state stage of the development of society, significantly in demand in the process of the initial formation of positive criminal law, and the customs themselves, sanctioned by the state, served as its primary source, "building material" [Andrianov, V.K. and Pudovochkin, Yu.E., 2019, pp. 61-62].
Criminal legal norms that arose on the basis of primitive taboos, like these taboos themselves, protect and support the most fundamental, deep values of human culture, values that in axiology correlate with the idea of the absolute and eternal. The question of the content of such values, as extremely complex
and very specific, cannot be considered within the framework of the present publication. However, we can support the authoritative judgments of N.G. Iva-nov that "the person himself and his inherent honour, dignity, property, health, and life are among the absolute values that have a universally significant veil"; "These values have never, in any era, been revised, unlike other value preferences, the legal regulation of which depended on the dominant views at a particular historical moment" [Ivanov, N.G., 2016, pp. 26, 33].
It should be noted that the criminalisation support for the established cultural norms that protect absolute values is not eliminated over time, despite the fact that the significance of these values in society has not been disputed for a long time. On the contrary, it acts as a necessary element of the system for protecting these values, constituting the core of the criminal law of any civilised society and acts as a harsh reminder of the objectively sad circumstance that even in the 21st century. these higher values are endangered.
2. The promotion of new cultural norms and the displacement of old ones is an eternal ocurrence, both a source and a task of criminalisation. As a rule, these processes develop in parallel, but sometimes they can exist independently. They reflect the general course of cultural dynamics, supporting cultural change with the power of government and criminal punishment.
The evolution of criminal law clearly demonstrates the presence of the considered vector of the influence of criminalisation on culture throughout the history of society. At the same time, it is most clearly manifested at the turning points of culture, in the era of social and cultural revolutions.
As the historical and legal analysis shows, the mechanism of criminalising support for new cultural standards is carried out in two main ways: by establishing criminal liability for violation of new cultural norms and by establishing responsibility for observing the old norms.
So, for example, a powerful, in fact a civilisational, shift associated with the Christianisation of Russia in the tenth century, was accompanied by the establishment of responsibility. Examples of such responsibility includes:
- for adherence to the old order, "sorcery", for those "who pray under the barn or in the grove" (Charter of St. Prince Volodymer, who baptized the Russian land, about church courts),
- for non-observance of the new rules, in the case of "a husband fornicating from his wife", "even if he is married to another wife, and not divorced from the side", "if someone drinks food and feasts with the excommunicated" (Charter of Prince Yaroslav Vladimirovich) [Yushkov, S.V., ed., 1952].
In turn, the revolutionary transformations in Russia at the beginning of the twentieth century alsoentailed the establishment of responsibility:
- teaching minors of religious beliefs in public or private educational institutions and schools is punishable (Article 121 of the Criminal Code of the RSFSR 1922), the performance of religious rituals in public institutions and enterprises, as well as the placement of any religious images in these buildings (Art. 124 of the Criminal Code of the RSFSR 1922);
- for violation by employers of collective agreements with trade unions (Art. 133 of the Criminal Code of the RSFSR 1922), the collection of rent from
workers and civil servants above the established prohibition (Art. 135 of the Criminal Code of the RSFSR 1922).
Chapter 11 of the Criminal Code of the RSFSR 1960, "Crimes that constitute remnants of local customs", deserves special mention in connection with the issue under consideration.
It is important to note that the promotion of new cultural norms and the displacement of old ones through criminal law prohibitions can have varying degrees of rigidity and, if it is permissible to put it this way, aggressiveness. They depend on two main factors: the degree of significance of the new cultural norm for the official authorities and the level of repressiveness of the political course being implemented in the country.
It will be interesting to recall in this regard that the values of Orthodox culture in pagan Russian society were initially supported by very mild measures, and not only from the point of view of the content of sanctions for their violation, but from the standpoint of the legal nature of these sanctions. At first, these were the norms of church statutes and normative acts of the church itself as a kind of social group or corporation. The sanctioning of new cultural standards had limited validity based on the characteristics of the entity responsible for promoting them. The state, as it were, shifted the responsibility of cultivating them to the church. Having declared Christianity to be the dominant religion, it in fact, up to a certain point, averted itself from the criminalisation of actions to violate the new rules and norms. And only much later, already in a secular, state-wide normative legal act (for the first time most fully in the Cathedral Code of Alexei Mikhailovich in 1649), did it truly criminalise the violation of cultural norms that go back to the Christian doctrine and the status of the church. Thus, it can be stated that having established a new cultural standard and recognising it as desirable and necessary for itself, the state, taking into account the fundamental cultural shift it produces, tried first to approve and promote this standard by the least punitive means, giving time to introduce it into public consciousness, and only then provided this standard with full protection by the forces of criminal law.
Such a technique, which involves the testing of new cultural norms through the practice of soft authorisation (through corporate, civil, administrative and other types of responsibility) is, to a certain extent, ideal, if not idealistic. Often, as history teaches, the promotion of new norms and values is carried out immediately through the criminalisation of the rejection of their observance. Especially if a significant cultural standard is introduced by a repressive government. In this case, even minimal deviations from it initially receive criminal legal authorisation.
In the process of cultural dynamics, new cultural norms introduced at some historical period become habitual over time, and firmly grow into the fabric of social interaction and into the public consciousness. They become "traditional". This happened, for example, in a situation when the once traditional class division of society was replaced by the principle of equality of citizens, the rigid gender division was replaced by the idea of equality of men and women, the permissive order of movement around the country was replaced by freedom of
movement. In such cases, the continuing criminalisation of encroachments on the once new, and now traditional values performs a different function, namely the function described above to support the established socio-cultural practices and norms.
3. Blocking cultural innovations is another way that criminalisation affects culture. It focuses on those innovations that are the product of an unofficial, non-institutional culture, and which reflect the presence or lead to the formation of norms and rules that are really or potentially dangerous for the official culture.
The history and current state of criminal law demonstrates that this method of influence of criminal law on culture has been used very actively.
For example, the Criminal Code of 1903 persecuted the compilation of an essay or image containing an insult or a threat to the person of the reigning emperor, the empress or the heir to the throne (Article 104). The public reading of an essay inciting the overthrow of the social order (Article 129) is another example. The RSFSR Criminal Code of 1926 established punishment for the production, storage and distribution of counter-revolutionary literature (Article 58.17), for fabricating and disseminating information that could cause mistrust in the authorities and discredit it (Article 58.18). The RSFSR Criminal Code of 1960 maintained responsibility for voluntary sodomy (Article 121).
In modern conditions, a certain reflection of the considered tendency of the influence of criminal law on culture can be the correction of the norm on insulting the feelings of believers (Article 148 of the Criminal Code of the Russian Federation). Another is the differentiation of responsibility for heterosexual and homosexual acts against minors (Article 134 of the Criminal Code of the Russian Federation), as well as numerous unrealised matters.
These unrealised matters are included in bills submitted to the State Duma of the Russian Federation aimed at establishing criminal responsibility for justifying the genocide of the Russian people (project No. 340882-7), insulting the feelings of veterans of the Great Patriotic War (project No. 1166853-6), discrediting the Russian Federation (project No. 1111185-6), repeated consumption of narcotic drugs or psychotropic substances without a doctor's prescription (project No. 991901-6), obtaining a residence permit in the Russian Federation by concluding a fictitious marriage (project No. 419191-6), attacks on historical memory in relation to events, that took place during the Second World War (project No. 197582-5), denial, justification, approval, understatement of political repression (project No. 307263-6), demonstration of Nazi symbols (project No. 173969-5)5
It must be admitted that blocking cultural innovations by criminalising certain actions is a very dangerous process from a cultural point of view, since it reflects the assessment of these innovations only from the point of view of their danger to power structures and their electoral basis, and therefore is always subjective and politicised. Thus, it is always associated with the risk of suppressing dissent, a different way of life, in principle, any "otherness", the rea-
URL: https://sozd.duma.gov.ru (date accessed: 20.12.2019)
sonable presence of which is an unconditional and necessary condition for the development of culture as such.
The considered ways of the reverse influence of the criminalisation of acts on culture are unequal in their significance and quite clearly correlate with the dominant political regime and the type of society. From a theoretical point of view, maintaining established norms quite clearly correlates with traditional society, blocking innovations with a totalitarian regime, promoting new and eliminating old cultural norms with a society that is in a state of transformation. This division is, of course, very arbitrary, since in real life there are practically no "pure" types and modes.
As for the current situation, it must be admitted that modern society (and not only Russian), as never before in history, is going through a period of constant change. Z. Bauman, characterised this period as a "fluid modernity". In such conditions, criminalisation is most closely associated with the processes of cultural dynamics, the transformation of norms and standards.
Considering the ever-increasing relativity of cultural values of modern society, its use for the purposes of managing society and building a cultural landscape is of particular importance. We must clearly realize that criminalisation is a very crude way of establishing cultural norms, since it is associated with the use of the most severe of the legitimate means of social violence; therefore its use must be carefully thought out and minimally applied. In modern domestic criminal law literature, the phenomenon of the pressure of criminalisa-tion on culture has not yet been fully realized, which suggests that there is a significant gap here, which should be filled by subsequent investigations of the problem, the results of which will serve the general interests of the harmonious development of man, society and the state.
Discussion and Conclusion
The criminalisation of socially dangerous acts, being in itself a cultural phenomenon, is closely intertwined with other cultural phenomena and processes taking place in society at various levels of its material and spiritual life. It accumulates in itself, transmitted by political institutions and supported by culturally determined sanctions, the prevailing and emerging in society ideas about the boundaries of freedom of the individual and the state in their mutual relations. In this aspect, criminalisation is an integral element of the political, legal, and criminological culture of society, and therefore its content and forms can be adequately perceived and evaluated only in the general context of the country's cultural development.
This approach allows us to identify a number of very promising areas for the subsequent analysis of the socio-cultural problems of criminalisation. These are criminalisation as a response to the requests of the executive branch, criminalisation as a means of maintaining or limiting judicial discretion, crimi-nalisation as a reflection of a compromise of political forces, criminalisation as a means of promoting new social values, criminalisation as a prerequisite for application preventive measures, criminalisation and the dominant type of culture. Each of them, we believe, deserves to be studied in detail, and in an
interdisciplinary context, in order to contribute to the further development of the entire complex of criminal law sciences and the practice of social administration in the field of criminal law.
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Информация об авторе / Information about the author
Natalya V. Genrikh, Dr. Sci. (Law), Head of the Criminal Law Department, North Caucasus Branch, Russian State University of Justice (187/1 Lev-anevskogo St., Krasnodar, 350002, Russian Federation)
Генрих Наталья Викторовна, доктор юридических наук, заведующий кафедрой уголовного права Северо-Кавказского филиала ФГБОУВО «Российский государственный университет правосудия» (350002, Российская Федерация, г. Краснодар, ул. Леваневского, д. 187/1). E-mail: ngenrih@mail.ru
