On the correlation of criminal sociology, criminology and sociology of criminal law

Chuklina Elena Research Fellow, Federal Research Centre the Southern Scientific Centre of the Russian Academy of Sciences 346800, Russia, Rostovskaya oblast', selo Chaltyr', ul. Patkanyana, 87 a die_sehnsucht@mail.ru Other publications by this author

Sociological methods are widely used in criminal law and criminological research, becoming an integral part of them. Criminology relies mainly on sociological methods due to the specifics of the elements that go into the circle of its subject: crime as a socio-legal phenomenon, determinants of crime and crimes, including social causes and conditions, the personality of the criminal, including its socially significant properties, and crime prevention, in particular, by general social measures^{[1; 2]}.

At the same time, studies of social conditionality and the effectiveness of criminal law norms using sociological methods, for example, the analysis of statistical data and the survey of experts, are incorrectly attributed to the field of criminology. Such studies are carried out within the framework of the sociology of criminal law. However, there is no consensus in the scientific literature on how the sociology of criminal law and criminal law, on the one hand, and criminology and criminal sociology, on the other, relate to each other.

Thus, in legal dictionaries, criminal sociology is defined as a branch of sociology that "studies crime as a mass phenomenon and tries to identify its socially conditioned causes" ^{[3; 4]}. This approach may be due to the fact that in Russian science the name "criminal sociology" was given to a scientific direction that arose at the end of the XIX century thanks to the Italian jurist and politician E. Ferri, who identified anthropological, physical and social factors of crime ^[5]. In fairness, it should be noted that E. Ferry's scientific work is called "Criminal Sociology" only in the Russian interpretation, in particular, in the Moscow editions of 1908 and 2005 ^{[6; 7]}. In the original, the name sounds like "Criminal Sociology" ^[8]. The author himself assumed that his criminal sociology was destined in the future to "become a branch of sociology" ^[9].    

M.N. Gernet noted that by the end of the XIX century, there were three positions in the Western and Russian scientific community regarding the correlation of criminal law and sociological research: 1. Criminal law investigates crimes not only from a legal, but also from a sociological point of view (M.V. Dukhovskoy, I.Ya. Foynitsky, F. List, Varga, R. Garofalo, Kolayanni, etc.); 2. criminal law is strictly a legal science that periodically takes into account the results of sociological research (N.D. Sergeevsky, N.S. Tagantsev, supporters of the classical school of law); 3. the complete removal of criminal law from sociology ^[10].

A review of foreign and domestic literature of the late XIX – early XX centuries devoted to the study of crime shows that regardless of whether the title of the work contains the words "criminal / criminal sociology" and "criminology" or does not contain, they all, in fact, represent the study of crime, its determination and counteraction to it, the personality of the criminal with the help of a complex (statistical, sociological, psychological and other) methods of obtaining meaningful data. Actually, at present such studies are fully covered by criminology.

E. Ferry called the synthesis of anthropology, psychology, criminal statistics, criminal law and prison studies criminal sociology ^{[5, p. 51]}. Criticizing the one-sided view of the causes of crimes, in particular, the physiological characteristics of a person, the scientist justified the importance of a multidimensional approach to the study of the causes of crime (anthropological, physical and social factors), classification of types of criminals (mentally ill, natural, habitual, accidental and by passion), countering crime (preventive measures, reward measures, repressive measures, measures of exclusion from society).

Italian lawyer R. Garofalo in the second edition of "Criminology. The nature of crime and the theory of punishment", combining anthropological and sociological approaches, developed a system of punishments differentiated depending on the crime committed, the motives of the criminal and his moral and psychological characteristics ^[11].    

The French scientist G. Tarde, agreeing with the classification of crime factors by E. Ferry, emphasizes the predominant influence of social factors. The author's greatest contribution to the study of crime is the conclusions about the existence of classes of criminals along with other professional classes of judges, officers, etc., as well as about the influence of the criminal environment on the formation of criminal tendencies and skills in an individual in this environment ^[12].  

Russian criminologist I.Ya. Foynitsky in the "Doctrine of Punishment", based on statistical data, identified three types of conditions that contribute to the commission of crimes – cosmic (soil, climate, race, food items, gender, age, physical condition of the body), social (wars, revolutions, the system of government, the amount of taxes, the state of the ways messages, trade, crafts, prices, etc.) and individual (features of volitional activity) ^[13].

According to S.K. Gogel, criminal policy, being an applied science, should evaluate measures to combat crime exclusively in accordance with the goals and reasons established within the framework of criminal sociology. The author emphasized the special role of preventive measures, which consist in eliminating the vicious and criminal tendencies of a person during their education before the commission of a crime ^[14].

Thus, at the end of the XIX century. in Western and domestic legal science, the sociological direction of the study of crime and related phenomena was formed as a compromise between the anthropological and classical schools of criminal law, which made it possible to significantly expand the methodological and substantive research of crime. This direction had two essentially equivalent names – "criminal sociology" and "criminology". The term "criminal sociology", characteristic of the Russian science of the pre-revolutionary period, is due to the origin of a new scientific direction in the bosom of criminal law. However, due to the fact that the research of crime, its determinants, counteraction measures, as well as the identity of criminals were not limited solely to sociological methods, "criminology" replaced "criminal sociology", at first designating one of the sections of criminal law, and subsequently – an independent scientific branch.

It should be noted that in the USSR for a quarter of a century until the 1950s, criminology was banned for ideological reasons, with the exception of internal secret analytics on the state and dynamics of crime. And only in 1964 criminology began to be taught at the law faculties of Moscow State University and the Sverdlovsk Law Institute ^[15]. At the same time , there are three opinions in the scientific community regarding the place of criminology in the system of scientific branches: 1. criminology is a part of criminal law (A.A. Herzenzon, A.A. Piontkovsky); 2. criminology is an independent science (I.I. Karpets, N.A. Struchkov); 3. criminology is a part of sociology closely related to criminal law (I.S. Noah, B.S. Utevsky) ^[16]. Only in the second half of the 1980s the position of criminology as an independent science was strengthened, largely thanks to the works of A.I. Dolgova, I.I. Karpets, N.V. Kudryavtsev, N.F. Kuznetsova, V.V. Luneev, A.B. Sakharov and A.M. Yakovlev ^{[9, p. 39]}.

From that moment on, a sociological direction, different from criminological research, appears in the scientific criminal law literature. Thus, L.I. Spiridonov pointed out that the subject of the sociology of criminal law includes the study of the social conditionality of criminal law institutions, the social mechanism of action and the effectiveness of criminal law norms. The scientist considered the sociology of criminal law as a part of sociological science ^[17].  

A similar position was taken by B.V. Zdravomyslov, however, without including the study of the effectiveness of criminal law norms in the subject of sociology of criminal law ^[18]. G.A. Krieger believed that the sociology of criminal law, being an aspect of criminal law, is engaged in the study of the real effect of criminal law, its social conditionality and effectiveness, which makes it possible to make a forecast and recommendations on improvement of the criminal law and the practice of its application ^[19]. 

In general, Soviet scientists agreed on the subject of sociology of criminal law and its place in the system of scientific knowledge.

However, modern scientists have again disagreed about the expediency of highlighting the sociology of criminal law, its subject and place in the system of legal science. Thus, from the point of view of S.F. Milyukov, criminology has sufficient potential and tools to investigate all social aspects of countering crime, including through criminal legislation. At the same time, the author positively assessed the allocation of sociology as an independent science in the future ^[20]. 

V.I. Zhukov and D.A. Savenkov note the great theoretical and applied significance of the sociology of criminal law up to the prediction of the development of the legal consciousness of the population and "verbal readiness to commit an offense" ^{[9, p. 41]}.  

The most common position in modern science is that the sociology of criminal law serves as a section of criminal law science, studying the social conditionality and effectiveness of criminal law norms ^{[21; 22]}.

Joining the latter point of view, it is impossible not to agree with S.F. Milyukov in the part that criminology has sufficient tools and capabilities to assess the conditionality and effectiveness of criminal law institutions. In particular, the study of the criminological validity of criminal legislation actually absorbs the study of social conditionality and the effectiveness of criminal law norms. The criminological validity of the law is its compliance with the current state of public relations in various spheres of life, the current criminal situation and the capabilities of the criminal justice system to fight crime ^[23]. The social conditionality of the criminal law prohibition and/or criminal liability is understood as the objective need for criminal law protection of public relations arising from the needs of society ^[24].  

This absorption is most clearly traced in studies of criminal law norms as measures of special criminological prevention of crimes, for example, norms with double prevention for the justification of their introduction, expediency and effectiveness of action ^[25].   

Nevertheless, in order to improve the accuracy and effectiveness of research, it is necessary to support the differentiation of the subject areas of criminology and sociology of criminal law, leaving the latter to study the social conditionality and effectiveness of criminal law norms, as well as the development of proposals for improving criminal legislation and the practice of its application.

Taking into account the above , the following conclusions can be drawn: 1. criminal sociology was the sociological direction in criminal law at the end of the XIX century, which later took shape in criminological science; 2. in the 1970s and 1980s, a discussion about the sociology of criminal law developed in Soviet legal doctrine; 3. most scientists consider the sociology of criminal law as a section of criminal law that studies the social conditionality and effectiveness of criminal law.4. it is necessary to differentiate the research areas of the sociology of criminal law and criminology in order to increase the effectiveness of research on criminal law; 5. the sphere of research issues of the sociology of criminal law should be considered the social conditionality and effectiveness of criminal law norms, the improvement of criminal law and the practice of its application.