To the question of the typology of the mechanisms of criminal law influence and the possibilities of their criminological support

Shikhanov Vladimir Nikolaevich ORCID: 0000-0002-9751-0714 PhD in Law Professor, Irkutsk Law Institute (branch) of the University Prosecutor's office of the Russian Federation 664035, Russia, Irkutsk region, Irkutsk, Shevtsova str., 1, office 205 shikhanovvn@rambler.ru Other publications by this author

In the circle of legal scholars and practicing lawyers, the question that a criminal law ban should be criminologically justified seems to be a truism. The opposite statement is usually used to describe the current state of legislative work in our country (of course, in a negative way) ^{[1, pp. 764-768]}. A lot of works have been devoted to criminalization and decriminalization, including as part of solid author teams, many approaches have been developed to bring these processes to a certain common denominator, a large number of scientifically sound proposals have been put forward that deserve attention.

At the same time, there is no generally accepted (and, according to a number of more critical comments, even satisfactory) methodology of criminological substantiation in the sciences of criminal law and criminology ^{[2, p. 150]}. In our opinion, there are several reasons for this.

First. According to many criminological indicators, there are no linear options for making a decision. Sometimes it is required not just to take into account the system of such (more often - statistical) indicators, but also a creative element, scientific, law enforcement and life experience. Prominent jurists have repeatedly noted that, for example, the prevalence of an act, and even its growth in quantitative terms, does not necessarily mean an increase in the degree of public danger, since they can be an indicator of changes in social norms and become a reason for decriminalization or depenalization of such behavioral acts ^{[3, pp. 103-105; 4, pp. 4-6; 5, pp. 117-118]}.

No less important is the fact that the decision to establish a criminal-legal ban and penalization is influenced by the ideological position of the authors of such a criminal-political decision (or the legislator himself). A striking example is the attitude of various lawyers and politicians to crimes in the field of economic activity, to punishment in the form of confiscation of property, in the form of the death penalty, to decriminalization of beatings, etc. On the pages of the legal press and in speeches at the conference, mirror arguments are given: represents an increased public danger / does not pose a public danger; cools hotheads / will lead to nothing; has a positive impact on protected public relations / has a negative impact on public relations, etc.

The position of representatives of law enforcement agencies in assessing the public danger of certain acts, in matters of criminalization and decriminalization (as subjects of legislative initiative) is further influenced by official pragmatics, including reflection on their mission in the social control system, and even a system of statistical indicators by which law enforcement agencies are assessed for work efficiency. In other words, it is necessary to take into account the mission of law enforcement agencies in the mechanism of criminal law regulation, but in this direction many issues still remain poorly understood.

In such conditions, the creation of a mathematically verified matrix that allows you to combine statistical data with ethical categories, with the spirit of the era, and at the same time to level out the different ideological attitudes of participants in the process of creating or changing a criminal law norm, turns out to be an extremely difficult task. At least, in the absence of an ideology that would determine and control the ideological position of everyone.

The second problem turned out to be no less significant. Since the middle of the XX century in Russia there has been a demand of the political authorities for the scientific justification of the criminal policy. Attempts to change the type of criminal law rationality were accompanied by the release of legal doctrine beyond the actual legal matter, conducting serious research on the grounds and rules of criminalization and decriminalization, the effectiveness of legal norms, the effectiveness of criminal penalties, in the field of penitentiary psychology and pedagogy.

This period of development of legal science, significantly enriched by the achievements of related social and humanitarian sciences (and even natural and exact), has given a lot in understanding legal awareness, legal behavior, the possibilities of criminal law and criminal justice in general, but at present these achievements are poorly demanded, and a lot has been said about this situation.

It should be recognized that the former symbiosis of political authorities and legal science was possible only because of the desire of the authorities themselves. The romantic ideas of jurists about the possibility of controlling political authorities in matters of what and how to prohibit, how to punish and how to pardon, turned out to be utopia ^{[6, p. 70; 7, p. 226-227]}. In other words, the development (through the efforts of science) of methods for creating a criminal law norm is a definite encroachment on political sovereignty, even if such sovereignty, alas, hides political arbitrariness and short-sightedness. In the near foreseeable future, a new period of symbiosis of legal science and political power is not visible, including due to mutual reproaches of lawyers and politicians within the framework of criminal and political discourse.

The third problem. In the modern concept of public administration (which relies a lot on neoliberal ideas and, in general, is intended to adapt the instruments of legal regulation to the conditions of postmodern society), criminal law is considered not only from the position of the former archaic ideas about it, and not even so much from the position of scientific ideas about protective, regulatory or educational functions. Criminal law has a communicative role, and the addressee of criminal law prohibitions (or amendments to the criminal law) is often the population experiencing a need for security - and it receives symbols of this security, consumes them in this way ^{[8, p. 73; 9, p. 1384-1388]}.

It is difficult to deny this side of criminal law, and it will probably not be possible to exclude it in the near foreseeable future, since the political authorities will not risk giving up such an opportunity to work with the electorate, from such a way of maintaining their legitimacy. On the pages of the legal literature, attention is already paid to the rules of criminological (and criminal-political) justification of criminal law norms through the prism of the communicative function of criminal law ^[10], however, unfortunately, not enough. As a result, the discourse has not yet developed and the jurists have not yet been able to interest the legislator in this regard.

It can be assumed that the combination of even these three named problems may prove to be an insurmountable obstacle to the development of mechanisms or techniques for criminological substantiation of criminal law norms - at least in the form of concepts introduced into legislative practice.

In our opinion, a different approach with a reversal of the problem from a different angle will be more productive. Currently, the criminal law doctrine demonstrates a shift in focus from the combination of "crime" - "punishment" & "other measures of a criminal legal nature" to the concept of "crime" - "criminal" - "society" - "criminal legal impact" ^{[11, pp. 87-111]}. The category of "criminal legal impact", which has not yet been presented in the text of the criminal law, in the decisions of the Constitutional Court of the Russian Federation and courts of general jurisdiction, at the same time, is used by legal scholars (remaining controversial in content, and therefore not generally accepted).

In most works on the mechanism of criminal legal influence, its structure and place in the legal regulation (or legal protection) of public relations, attempts are made to identify its unique nature and describe it as unified and universal ^{[12, pp. 278-347]}.

This is not surprising, since criminal law science has long had an idea of the common unique and unifying features of all criminal law norms, thanks to which they are reduced to one branch (although it should be noted serious attempts to revise this state of affairs in the concept of criminal matter, including in the decisions of the European Court of Human Rights ^{[11, pp. 111-120]}), on the rules of systematization of norms and institutions of criminal law, when its provisions are divided into General and Special parts and must obey a single logic of construction, internal relations. The decodification observed today, the violation of systemic connections in criminal law, and hence in the branch of criminal law, are naturally considered as threats to the normal operation of the entire process of criminal legal influence.

At the same time, the changing criminal law, as well as the fact of giving it new functions within the framework of criminal policy, make it possible to discover that the mechanism of criminal legal influence is not uniform. In fact, there are several such mechanisms. They are sometimes formed through criminal and political trial and error, as well as due to the influence of law enforcement practice and judicial normative interpretation, the role of which can no longer be denied.

To date, in our opinion, it is possible to distinguish at least three variants of the mechanism of criminal legal influence, each of which has a specific functionality. At the heart of such a distinction is not the operation of classification, but typologization, and therefore the following options for mechanisms of criminal legal influence should be called types:

1. retributive (involves retribution, in the terminology of some jurists – punishment, as well as ensuring the safety of citizens from the person who committed the crime);

2. preventive (deterrence of potential violators, when the expected losses provided for by criminal law and provided by law enforcement practice should significantly outweigh the planned benefits from the crime);

3. correctional (measures of criminal legal impact are mainly aimed at providing corrective action and re-socialization in order to prevent repeated criminal behavior).

In this case, the role of criminology in matters of interaction with criminal law turns out to be productive, but not in attempts to impose its own criminalization rules on the political authorities, but in accompanying the work of such mechanisms of criminal legal influence in the creation of criminal law norms, in the process of their operation, as well as in their application.

The division of the mechanisms of criminal legal influence into types is based on the difference between the types of criminal legal rationality that coexist in domestic criminal law, i.e. on the difference of such ideological constructions that play the role of methodological justification of knowledge, demarcate the latter into scientific and unscientific, self-evidently true and incorrect ^{[13, pp. 92-127]}.

Types of criminal law rationality, as well as rationality in general, can be distinguished quite a lot, depending on the objectives of the study. At the same time, with regard to Russian criminal law, there are sufficient grounds to assert that the earliest type was mythological with a number of features inherent in worldview attitudes, and therefore the legal consciousness of all ancient ethnic groups. Having begun with this most archaic content, criminal-legal rationality in the process of evolution of the state and law, political and economic relations, and as a result, due to changes in legal culture, faced an attempt to replace it with others. This process naturally occurs in any state due to the introduction of other approaches to understanding crime, punishment, the role of criminal law in regulating public relations (for example, the sociological school, the economic approach, the current of abolitionists, etc.).

Such attempts to change the type of rationality were not unsuccessful, but it was not possible to completely displace the ancient mythological elements in any country. Each type of rationality, of course, is associated with such features of collective criminal-legal consciousness, which are contained in the cultural and symbolic justification of the criminal-legal prohibition, set different attitudes to crimes of different types and corresponding expectations from the application of criminal law in different circumstances. All this, on the one hand, creates a rather motley picture in the structure of criminal law culture, but on the other hand, it allows us to understand a number of anomalies that have accumulated in the doctrine of criminal law, criminal policy, criminal law and law enforcement practice. These are, for example, verdicts rendered by a jury when they contradict elementary legal experience, and sometimes formal logic; these are unsuccessful attempts to describe the universality of all purposes of criminal punishment; and approaches of the political authorities to criminalization, decriminalization, penalization of socially dangerous acts that break out of scientific concepts; and discrepancies in assessments of the public danger of certain other acts between the legislator, who establishes severe sanctions in the articles of the Special Part, and law enforcement officers who actively use the potential of Chapters 11 and 12 of the Criminal Code of the Russian Federation in cases of these crimes, and even incessant disputes between lawyers on rather old, but conceptual issues of criminal law. Having understood the reasons and origin of such anomalies, the doctrine gets the opportunity to solve them. Let us proceed directly to the description of the types of mechanism of criminal legal influence proposed by us.

The first type of mechanism of criminal-legal influence – retributive – is based on the mythological part of criminal-legal consciousness and the corresponding (mythological, archaic, but very tenacious) type of rationality. It assumes, first of all, retribution (up to retribution), with the desire to ensure that the severity of the punishment is equivalent to the harm caused by the criminal. The issues of correction in this case are the least relevant, and the issue of protecting society from those who have committed such crimes is expedient, but still additional to retribution.

The restoration of violated public relations in the literal sense in such cases is impossible, since the criminal law and the court's conviction, as well as the execution of criminal punishment, cannot make the former "not-former". Here we are faced with one of the breaking points of the criminal law doctrine (for example, on supporters and opponents of the death penalty, on supporters and opponents in general of ideas about the restorative abilities of criminal punishment). Restoration here, of course, takes place, but within the framework of criminal-legal consciousness, based on the mythological type of rationality, in the course of a specific cultural and symbolic exchange ^{[14, pp. 132-136]}, secured by an act of justice and the execution of this act. In other words, the former balance of power is being restored, the binding nature of the law is being affirmed, the legitimacy and inviolability of the sovereignty of the power that issued the law, and the state's monopoly on violence. To what extent this concept and this goal of punishment are important in a post–modern state (and a society that does not consider itself archaic) is a debatable question and requires a separate discussion ^{[15, pp. 106-107]}.

Speaking in a more dry legal language, when the first type of mechanism of criminal legal influence is working, it is not a specific public attitude in general that is restored, but a certain set of them, when it is not about a certain victim, but, for example, about the rights and freedoms of a person and a citizen, because criminal justice in this case claims that they arethey are still the highest value. Among the postulates of the classical school of criminal law, this act of restoration is structured as follows: crime is an act of will that denies the law (right), and punishment is an act of denial of the will that denies the law (right) ^{[16, p. 80]}. This is the reason for the search for proportionality of crimes and punishments, their equivalence in severity, the rhetoric about the inevitability of a reaction to every case of violation of the law, when a court decision should ensure retribution to the guilty.

Criminological support of such a mechanism of criminal-legal influence presupposes, firstly, the identification of criminal-legal prohibitions with this mythological semantic framework, with corresponding expectations in society. The ideas of mediation and restorative justice in cases of the construction and application of norms on such crimes will encounter misunderstanding of the majority of the population and, accordingly, will provoke the processes of delegitimization of the law, political power, criminal justice bodies. Such processes may be followed by acts of extrajudicial killings.

Since the legal culture of society and its criminal-legal component are subject to transformations, periodic monitoring of the list of criminal-legal norms based on the mythological type of rationality is necessary. And if, for example, the Swiss or Norwegians are ready to understand and forgive those who caused many people to die, and also consider it sufficient and correct to use measures of social rehabilitation of the guilty with ensuring a high standard of living at the stage of execution of measures of criminal legal impact, then this form of legal reaction will seem condoning to the Russian society at this stage, impotence or mockery of the traditional value system. On the other hand, over time, the population can quite painlessly agree to the transition to other types of mechanism of criminal legal impact on certain crimes, give preference, for example, to corrective measures and re-socialization, conflict resolution in return for retribution.

Notable in this regard are diverse legislative initiatives (some of which have been implemented). On the one hand, this is the decriminalization of beatings that occurred in connection with the adoption of Federal Law No. 323-FZ of July 03, 2016 "On Amendments to the Criminal Code of the Russian Federation and the Criminal Procedure Code of the Russian Federation on Improving the Grounds and Procedure for Exemption from Criminal Liability" (Rossiyskaya Gazeta No. 149 of July 08, 2016).

Various points of view were expressed on the pages of the legal press, including many fears of the development of impunity, the increase in the number of crimes against the person ^{[17, p. 162; 18, p. 132-135; 19, p. 128-130]}. At the same time, gloomy forecasts did not come true, and the population as a whole did not notice this decriminalization, positively regarding, among other things, measures of administrative and legal reaction to such incidents. It can be said that beatings are not among those encroachments that most citizens feel the need for revenge by means of criminal punishment, and therefore the mechanism of reaction on the part of public authorities may be different.

But on the other hand, the Supreme Court of the Russian Federation has taken a legislative initiative to abandon criminal cases of private prosecution (Bill No. 1145531-7 "On Amendments to the Criminal Procedure Code of the Russian Federation (in terms of Changing the Type of Criminal Prosecution in relation to crimes provided for in Part one of Article 115, Article 1161 and Part One of Article 1281 of the Criminal Code of the Russian Federation Federation)". URL: https://sozd.duma.gov.ru/bill/1145531-7).

And if the previous concept of criminal procedure policy took into account elements of restorative justice, guided private prosecutors and accused to reconcile (guaranteeing the absence of legal consequences in accordance with Part 2 of Article 20 of the Code of Criminal Procedure of the Russian Federation), then the Supreme Court proposed to change, among other things, the mechanism of criminal legal impact by transferring all such crimes to the category of private-public and public. The Supreme Court motivated its decision by the desire to increase the protection of the constitutional rights of citizens from criminal encroachments.

Judging by the texts of explanatory notes to the mentioned law and the draft law, the issues of the attitude of the population to the legal prohibitions that roam between the Criminal Code of the Russian Federation, the Administrative Code and different modes of criminal prosecution in the Criminal Procedure Code of the Russian Federation, as well as the issues of waiting for one or another model of the reaction of the criminal justice authorities have not been investigated. We believe that this is one of the necessary, but not yet in demand areas of criminological support of criminal law impact mechanisms.

The processes of stigmatization in the case of a retaliatory type of mechanism of criminal legal influence are appropriate and in many ways even useful - here we agree with the position of E. Durkheim: "A crime, as we have shown elsewhere, is an action that offends certain collective feelings endowed with special energy and distinctness. In order for actions recognized as criminal to cease to be committed in a given society, it would be necessary for the feelings offended by them to meet in all individual consciousnesses without exception and with the degree of force necessary to restrain the opposite feelings. ... Indeed, in order for the collective feelings that the criminal law of a given people protects at a given moment in its history to penetrate into the minds that were closed to them until then, or to gain greater power where they did not have enough of it until then, they need to acquire greater intensity than that, which they had before. It is necessary that for society as a whole, these feelings gain more energy, since from another source they cannot draw the strength necessary to penetrate individuals, hitherto especially immune to them. In order for the murderers to disappear, it is necessary that the aversion to spilled blood in those social strata from which the ranks of murderers are formed should increase, and for this it is necessary that it should increase throughout society. Moreover, the very absence of a crime would directly contribute to achieving this result, since the feeling seems much more worthy of respect when it is always and invariably respected" ^{[20, p. 180]}. We will only add that in order to strengthen those collective feelings that the well-known sociologist spoke about, from the standpoint of criminology and proven practices of countering crime, it is not necessary to wait for an increase in the number of crimes and the emergence of a sense of anxiety in society, just as it would be utopian to hope for the disappearance of crimes. The result can be achieved with the help of social advertising and legal education tools, as well as in the process of daily educational work. Such work with the criminal-legal consciousness makes it possible to legitimize, among other things, the applied measures of criminal-legal influence ^{[21, p. 291]}.

This means that the selected ways of communicating information about persons who have committed such crimes, when we appeal to public feelings of the need for retribution, retribution, although they will increase the stigmatization of convicts, however, they will allow society to rally around protected values that are important (to the sacred, as in the case of life or sexual freedom and sexual integrity).

Punishments in such cases should involve imprisonment for a sufficiently long period of time with a restriction on the possibility of his conditional appointment or release from criminal liability. At the same time, the return of criminals from correctional institutions in such cases is often expected, and therefore individual preventive work is necessary as criminological support, including, as Yu. M. Antonyan correctly notes ^{[22, p. 412]} and E. S. Steshich ^{[23, pp. 256-280]}, an appeal to the peculiarities of personal defects, as well as the phenomena of the individual and collective unconscious for the development of self-control and correction of reactions to typical situations in which a person has committed a crime and can repeat it.

The second type of mechanism of criminal legal influence (preventive) is based on the approach of utilitarians ^{[24, pp. 224-225, 243]} and the development of economic theory in criminal law ^{[25, pp. 313-328; 26; 27, pp. 64-75]}. It corresponds to a well-defined type of rationality, which has received its small development in countries with Protestant culture. In this case, the criminal legal impact implies the threat of significant losses (often in property terms) and the limitation of vertical social and economic mobility, and therefore is more focused on representatives of the middle class and the top of the pyramid of social stratification. The result of the application of this type of mechanism of criminal legal influence, on the one hand, should reduce the costs of maintaining criminal justice bodies, and on the other hand, it is guaranteed to lower the guilty person in social and economic status, ensure the disadvantage of committing a crime from a rational point of view, since the benefits from its commission should be multiples smaller.

Criminological support of this type of mechanism of criminal legal impact should determine the parameters of the sanction and arguments for its calculation: the degree of latency (the probability of capture is inversely proportional to the severity of the sanction), the labor intensity of the investigation process, the possibility of execution of the sentence and the adoption of interim measures, the impact of sanctions applied to violators of the law on the regulated sphere of public relations in general. Modern developed capitalist countries have a fairly rich experience in using such a mechanism of criminal legal influence, including methods of enforcement of a court sentence.

As part of the preventive mechanism of criminal legal impact, stigmatization is also welcome. Social advertising products can problematize the criminal situation "the desire for personal enrichment due to the infringement of the economic or environmental interests of ordinary people (under which many recipients of social advertising will see themselves), as well as such public interests that resonate in society." A certain dissemination of information from judicial practice about those who suffered a social fiasco as a result of the commission of a crime will reinforce the effect of criminal law prohibitions.

At the same time, the stigmatization in these cases should be moderate, aimed at blocking the ways of returning persons convicted of such crimes to the previous layers of socio-economic stratification.

At the same time, criminal legal means may allow exemption from criminal liability or the imposition of a conditional sentence in the case of multiple compensation for the damage caused (or a multiple excess of payments made to the budget over the amount of illegal profit).

Individual prevention in these cases has, in our opinion, low effectiveness, since we are mainly faced with persons who, in conditions of anomie (according to R.K. Merton), choose an innovative type of reaction, and in general, they quite fit into the image of a rational representative of capitalist society. At the same time, criminology may be interested in the phenomena of culture (including subcultures, corporate norms) and the unconscious ^{[22, pp. 403-406]}, as a result of which persons commit crimes formally under the influence of rational calculation, but in fact tend to satisfy some vaguely realized (for example, repressed) needs.

Criminological research of a typical representative of the relevant crimes is necessary for the construction of an effective sanction of a criminal law norm of a special part and the elaboration of norms on exemption from criminal liability or punishment.

The third type of mechanism of criminal legal influence - correctional – is based on another type of rationality; let's call it scientific, since it is associated with the development of social and humanitarian sciences over the past two centuries, as well as with the question of the determinants of criminal behavior, with the search for opportunities by means of criminal law, criminology, and other spheres of human scientific knowledge minimize (or completely eradicate) crime. Perhaps the central issues are freedom of will in criminal behavior, personality traits and qualities that lead to violation of the law, but amenable to correction, in general, the discourse on correction, re-socialization, re-education of former criminals.

In addition to the crime, the focus of attention and, accordingly, the criminal legal impact in this case are the family, the process of socialization of the individual, the influence of external negative factors (drunkenness, poverty, microenvironment). The mechanism of criminal legal influence in this case should create conditions for the application of measures of individual criminological prevention and assistance in re-socialization, in improving discipline and self-control, with minimal stigmatization of the offender, but the possibility of strengthening the supervision carried out.

In addition, criminological support in such cases should include cultural and educational activities within the framework of special criminological prevention, primarily by means of social advertising, so as not to represent typical citizens who commit such crimes as enemies, i.e. to minimize stigmatization.

The work to identify a typical representative of our society who violates criminal law prohibitions based on the third type of mechanism of influence, as well as the selection of criminal law measures themselves are necessary, on the one hand, to respond to the fact of violation of the boundaries of the norm and deviation, and on the other hand, to help overcome the influence of those very negative factors, to resolve the conflict. We believe that it is this mechanism of criminal legal influence that can be associated with such a phenomenon as "criminal misconduct" if criminal law is developed in this direction.

We believe that the results of the rather excessive criminalization that has taken place in the last decade in Russia require an audit. At the same time, we must understand that it is most likely impossible to force the political authorities to abandon the communicative function of criminal law. In our opinion, the elements of crimes that have emerged as a result of the new criminalization require their analysis according to the appropriate types of the mechanism of criminal legal impact with the modification of sanctions, and perhaps the scheme of differentiation of criminal responsibility.

Norms that do not fit into these types of mechanism may well be decriminalized. In particular, criminal law prohibitions or parts thereof, created to meet the needs of the population for media effects, to demonstrate the willingness of the state to protect certain values, should be functional and reflect the type of rationality within which society manifests the above-mentioned needs and expects the corresponding results of the application of criminal law.

At the end of this article, we note that criminology cannot and should not be reduced to the maintenance of criminal law prohibitions, and such activity itself does not change the subject area of criminological science and does not modify the directions of its development. Many of the results obtained by criminologists are useful for countering crime, but obviously uninteresting for criminal law, and vice versa. The underlying task of our research is to look at the problem of criminological justification of the criminal law prohibition from a different angle and thereby try to revive the links between criminal law and criminology, which are currently being tested for strength.