Social conditioning of law.

The social conditionality of law is included in the range of issues studied by the sociology of law. Sociology of law is a branch of sociology that studies the influence of social conditions on the entire life cycle norms of law - lawmaking, law enforcement and law enforcement, because legal norms arise from actually existing social relations. This is the main thesis of the social conditioning of law. In addition, law arises directly from social preconditions, because:

· law refers to a system of social norms that together determine the behavior of an individual in society and form the structure of social relations. The sociology of law studies the impact of law on social relations in interaction with other social regulators: customs, morality, etc. This section of sociology also examines the problem of the relationship between law and morality, law and traditions, etc.

· the sociology of law as a part of sociology considers legal field as one of the social subsystems studied through the prism social action and interactions.

So, the problems of social conditionality of legal norms and the legal relations generated by them include, first of all, questions of the adequacy of existing law to actual social reality, compliance of legislation with real trends in the development of social relations.

The study of the social conditionality of law involves the analysis of social factors that are primarily of a non-legal nature and influence the process of formation and development of law.

Viewing law as social system caused the need to study the mutual influence of the totality social factors, affecting the law and the reverse effect of the law on social practice.

Legal norms function in the sphere of actual social relations, regulate them and at the same time correspond to their content.

The legal registration of certain social relations occurs in conditions when stable principles of social interaction have not yet developed. Often, legislative practice itself initiates the creation of completely new relations designed to solve pressing problems of meeting social needs and ensuring the most important directions in social development.

Specific sociological research social conditionality of law are aimed at identifying types of social relations that are not covered by the law or compete with the law.

The social conditioning of law also means the fulfillment of social functions by law. Basic social function law is integrative - a function of uniting social entities. The legal system is aimed at achieving the main goal - social harmony, consensus.

Additional social functions of law include:

· regulatory, expressed in vesting subjects of legal relations with a certain amount of rights and obligations both in relation to each other and in relation to the state and its bodies;

· communicative, called upon with the help legal norms bring to the attention of participants in public relations the state’s position on required, permitted or prohibited behavior;

protective, due to the need to protect public relations, protect the interests of a citizen, a social group, society as a whole, and prevent crime.

Social functions of law. IN In a social institution, one can distinguish the external form of manifestation and internal content. Externally, a social institution is a set of institutions, financial and material resources, human resources. The internal side of social institutions appears as a set of standardized patterns of behavior of authorized persons responsible for the implementation of certain functions.

Law has everything common features social institutions: the presence of certain functions, hierarchy, normative side and cultural and ideological symbols. Let us consider the particular features of law as a social institution. Law is the most important factor of social order. It ensures social stability, protecting individuals and society as a whole from various manifestations of destructive and antisocial behavior. Law acts as a guarantor of stability and predictability in social relations. The rules of law regulate all the most important aspects of public life and control the work of government institutions and organizations. How normative education law participates in the formation of the structure of society, controlling the limits of what is permissible in the activities of individuals and the state. Law is part of the social control operating in society. Law is closely connected with the political life of society, acting as a political instrument. Finally, law is an integral part of the value system of a society, reflecting and embodying the values ​​characteristic of this society.

Issues of the functioning of the social institution of law are of great interest to researchers studying law. Among the functions performed in society by law as a social institution, the following can be distinguished:

Integrative function. It manifests itself in the fact that law ensures the existence and preservation of a unifying and completely permeating order in society. By using legal norms and corresponding sanctions, the prevailing tendencies in society towards its preservation and strengthening over the tendencies towards destruction and anomie are achieved. By ensuring that society has a certain required level conformity, law contributes to the survival and adaptation of society as a system. It is no coincidence that law is compared to the immune system of society. The integrative function of law can be considered its main function, considering all others as derivatives.

Regulatory function. Law regulates all processes occurring in society, fulfilling the role of a universal social regulator. It clearly requires each individual, organization, and group to perform certain responsibilities and also enjoy certain rights. Thus, the law stimulates the harmonious development of the social organism, strengthens the existing social relations and contributes to their improvement.

Protective function. Closely related to the regulatory function of law is its protective function, aimed at protecting individuals, groups and organizations from possible violations of their rights and infringement

interests. This function is performed by law through the imposition of prohibitions on certain actions and behavior that fall under the category of illegal. The legislation clearly states when

signs of such actions, qualified as elements of an offense, and are correlated with certain sanctions that act as punishments. In addition, the protective function of law is manifested in the restoration of violated rights, compensation for damage caused and rehabilitation of those unfairly accused. Measures of this order include the reversal of an illegal sentence, compensation for material and moral damage caused, etc.

Communication function. It lies in the fact that law, like all other social institutions, is inscribed in a single information space, which is society. All legal documents, such,

as legislative acts, agreements, court decisions, are not only regulators of social processes, but also carriers of information that is very important for individuals, informing them of the content of their rights and obligations, bringing to their attention the requirements imposed on them by the state and society . A feature of legal information is its prescriptive nature. Timely recognition and assimilation of such information contributes to the successful and safe social existence of individuals who are themselves interested in legal knowledge, since ignorance of the laws in any society does not exempt them from responsibility.

Socializing function. It is a direct continuation of the integrative function. For social integration to continue and remain stable, it is necessary that young people

generation deeply understood social values and norms, the content of which is aimed at maintaining social order. All institutions existing in society, to one degree or another, in addition to their main functions, simultaneously participate to one degree or another in the socialization of individuals, contributing to their gradual involvement in a single process of social life.

In general, the process of socialization of an individual lasts a lifetime. Of course, it occurs most intensely in childhood and adolescence, but even later, in the years of maturity, the individual continues to experience the effects of this process. The essence of socialization lies in the gradual internalization (assimilation) by an individual of values ​​and norms developed by society, and its result is the emergence of an internal imperative self-regulator - conscience, which, even without external pressure, social control, without the threat of sanctions, is able to restrain him from actions that are undesirable for society and potentially disintegrating it.

Participation in the process of socialization of the individual is one of the most important functions of the institution of law. It is implemented through legal education- special area educational process, during which legal values and norms are initially simply brought to the attention of the individual, and later become his deep inner conviction, preventing the commission of illegal acts. The result of proper legal education is the formation of an individual’s legal consciousness and legal culture.

The state of social institutions reflects the level of stability and development of the entire social system. The modern Russian constitution guarantees individual rights and freedoms. But in real life, these rights and freedoms are constantly violated by administrative authorities, justice and law enforcement agencies, and employers. Protecting your rights in the courts is very expensive big money, so many citizens are unable to pay for a lawyer. Corruption is no secret either. judicial authorities: in terms of the level of corruption, the Russian state occupies one of the first places in the world, along with some African republics. Many problems also arise in connection with the federal structure of Russia. Thus, the legislation of many subjects of the federation contains points that directly contradict the Constitution Russian Federation. Russian civil legislation consolidated market relations in our country and confirmed the right of ownership as an inalienable right of every person. The investor plays a leading role in the Russian economy, but his legal status is not clearly defined in Russian legislation. The problem of criminal penetration into business has reached a national level. A significant part of Russian business is controlled by mafia structures; there is a whole sphere of shadow business. The weakness of law enforcement agencies and, to a large extent, their corruption allow crime to gradually crush more and more commercial organizations. Illegal business is no longer limited to trafficking in weapons, drugs and contraband. Industrial enterprises also fall into the sphere of influence of criminal structures.

Thus, the state of law in Russia is connected with the political and economic problems facing the country at a transitional stage of development. The existence of these problems reduces the effectiveness and potential of the institution of law. In many ways, this is the fault of the country’s political elite, whose activities do not always comply with legal norms

Introduction……………………………………………………………………………….3
1. Historical aspect socio-legal conditionality of the Special Part of Criminal Law in Russia…………………………………..4
2. Concept and socio-legal conditionality of the Special Part of Criminal Law………………………………………………………………...11
3. Social and legal conditionality individual systems Special part of criminal law………………………………………………………13
Conclusion……………………………………………………………..16
Literature………………………………………………………………………………...17

Introduction
Criminal legislation represents an inextricable unity of the norms of the General and Special Parts. It is an integral part of a single legal system Russian state, reflecting the social, economic, political and spiritual changes taking place over the past decade.
The norms of the General and Special parts of criminal law are applied in inextricable unity. Special part criminal law is a scientifically based system located in a certain sequence criminal law, establishing an exhaustive range of acts dangerous to the individual, society or state, recognized as crimes, as well as specific punishments imposed for their commission.
In the activities of judicial investigative bodies, the norms of the Special Part of the Criminal Code are applied in strict accordance with the rules and principles established by the norms of the General Part. Thus, it is always necessary to take into account the articles of the General Part that establish the age of a person at which it is permissible to be held criminally liable for a specific crime; determining sanity, preparation and attempt, complicity, procedure for imposing punishment, etc.
The General and Special parts of criminal law should be considered in the plane of the relationship between the philosophical categories of general, special, individual.
1. Historical aspect of the socio-legal conditionality of the Special Part of Criminal Law in Russia.
Historically, the norms of the special part initially appeared in the form of separate legislative acts issued by states and establishing responsibility for such ancient crimes as murder, theft, rape, attacks on religious shrines, etc. Gradually, these norms were consolidated in systematized legislative acts that were complex in nature and included, along with criminal norms, norms of criminal procedure, civil and civil procedural law. As society developed, new social relations emerged, and spiritual ideas about values ​​changed, the range of criminal acts changed towards its expansion. At the same time, in ancient and medieval legislative monuments the class approach in criminal legal assessment criminal acts in terms of sentencing depending on the social status of the victim. So, for bodily injury inflicted on the prince, the oldest monument domestic law- "Russkaya Pravda" established a sale (fine) of 12 hryvnia, and for bodily injury inflicted on a stinker (i.e., a peasant) - three hryvnia. According to the Smolensk Treaty with the Germans (beginning of the 14th century), a fine of 10 hryvnia was established for the murder of a free person, and one hryvnia for the murder of a slave.
Gradually in legislative acts feudal Rus', for example, in the Code of Laws of 1497, Code of Laws of 1550, Cathedral Code 1649, along with the emergence of new crimes, provisions on guilt, instigation, aiding, and attempt were contained in the General Part. Only in early XIX V. A Code of Laws was developed, in which laws were arranged according to industry.
In volume 15 of the Code of Laws for the first time criminal law was divided into General and Special parts. In the Special Part, all criminal acts were divided into crimes against faith; state crimes; crimes against the government; crimes by officials; crimes against security, life and rights social condition persons; crimes that violate various types of statutes (on duties, government administration, improvement); crimes against family; sexual crimes; property crimes.
The general part of criminal law could arise as a result of the generalization of specific criminal acts and forms of their commission. In the Code of Criminal and Correctional Punishments of 1845 - an outstanding criminal legal act of the Russian legislation of the XIX century V. - despite its cumbersome and conglomerate nature, many problems of both the General and Special parts of criminal law have received legislative expression. Structurally, the Special Part in the Code was classified into sections, chapters, departments, and groups. In first place was the section called “On crimes against faith and violation of the regulations protecting it.” A significant place was given to crimes against faith. A number of chapters were devoted to them: “On blasphemy and condemnation of the faith,” “On deviation from the faith and the decrees of the church,” “On insulting the sacred and violating church decorum,” “On sacrilege, digging up graves and insulting dead bodies.” The Code included the chapter “On false oath”, which encroaches on justice, as crimes against faith. An independent section was devoted state crimes. The Code included not only an encroachment on the life of the emperor, but also a “rebellion”, high treason, crimes against other states and their representatives. Special sections were devoted to crimes and misdemeanors against public welfare and decency and crimes and misdemeanors against the laws of fortune. On last place The Code contained sections providing for liability for attacks on the life, health, honor, dignity, freedom and tranquility of private individuals, as well as attacks on the property of private individuals. Despite its excessive cumbersomeness (the Code included 2304 articles), this legislative act regulated in detail criminal law prohibitions for many socially dangerous acts.
Conducted in the 60s. XIX century reforms in Russia, including Judicial reform, the creation of the institution of justices of the peace, the delimitation of jurisdiction in cases of crimes and misdemeanors required changes in the criminal legislation itself. The Charter on punishments imposed by justices of the peace, adopted in 1864, also contributed to the beginning of the development of a draft of new Russian criminal legislation.
On March 22, 1903, Emperor Nicholas II approved a new Criminal Code, which consisted of 37 chapters and 687 articles. The first chapter was devoted to issues of the General Part. Chapter two was called “On violation of regulations protecting the faith” and provided for liability for religious crimes. Chapter three contained crimes against the sacred person of the sovereign emperor and rebellion against supreme power. The fourth, fifth and sixth chapters dealt with criminal liability for high treason, unrest, and disobedience to authority. The seventh chapter was devoted to crimes against justice. The Code contained a detailed list of acts against persons and property. Familiarization with the structure of the Criminal Code of 1903 indicates that the classification of crimes into chapters was based on the principle generic object criminal attacks. The Criminal Code of 1903, with its internal logic in the sequence of material arrangement and its structure as a whole, favorably differed from many criminal codes of other states. “The Code of 1903,” noted the outstanding Russian legal scholar Professor N.N. Polyansky, “was quite decent in form, European in the legislative technique demonstrated in it, and at the same time not only was not inferior to the Code of Punishments of 1845, but , on the contrary, surpassed it in its breadth of coverage of all possible forms of detecting sentiment hostile to the government."
After the October Revolution of 1917 in Russia and the Bolsheviks coming to power, the attitude towards criminal law changed radically. According to Decree No. 2 “On the Court” of March 7, 1918, the laws of the tsarist government could be applied only in cases if they did not contradict the socialist legal consciousness of judges. In other words, the law was replaced by a very streamlined concept of “socialist legal consciousness” as a criterion when considering the issue of bringing a person to criminal liability. Until 1922, criminal legislation in Russia was not codified. In addition to a number of decrees establishing criminal liability for bribery, profiteering, desertion, etc., in 1919 the “Guidelines on the Criminal Law of the RSFSR” were adopted, containing only the basic provisions of the General Part of Criminal Law. In particular, a crime was defined as “an action or inaction that is dangerous for a given system of social relations.” It is easy to notice that in the definition of the crime there was no indication that a socially dangerous act was prohibited by law. In the absence of a Special Part, any act assessed from the standpoint of revolutionary legal consciousness could be considered criminal. It was kind of legislative justification arbitrariness.

Criminal liability for torture

1. Social and criminological conditionality of the criminal law prohibition of torture

Modern criminal legislation of Russia recognizes as torture an act in the form of causing physical or mental suffering through systematic beatings or other violent actions, if this did not entail the consequences specified in Articles 111 and 112 of the Criminal Code of the Russian Federation (Part 1 of Article 117 of the Criminal Code of the Russian Federation). It can be said with confidence that the criminal law prohibition of torture is a historical tradition in the Russian Federation, since the rules providing for it appeared several centuries ago. Such norms have undergone changes many times, corresponding to one or another era of development of our society.

At the same time, in our opinion, such a long period of existence of any legal norm should not weaken the attention of legislative bodies to the issue of the social and legal conditionality of the norm. This is especially true for the norms of criminal law, since their violation entails the most severe reaction from the state. In this regard, it seems reasonable to study the socio-criminological conditionality of the criminal law ban on torture, which will answer the question of the necessity and expediency of this ban today.

The problem of criminalization of socially dangerous acts is rightfully considered one of fundamental problems theory of criminal law, the resolution of which was devoted significant amount works containing different points of view on what specific criteria should be used as the basis for the criminalization of acts 2. Without being able to conduct a detailed analysis of the points of view expressed, we note that despite all the differences in approaches to the criteria (grounds, conditions, principles) for the criminalization of acts, it is quite possible to identify those that are recognized by almost all researchers. Thus, most authors agree that in order to establish the criminality of an act, it is necessary that it be socially dangerous, sufficiently widespread, and procedurally provable. A necessary condition criminalization recognizes the impossibility of effectively countering a socially dangerous act by others legal means. In addition, it is generally accepted that criminalization of an act is possible only if it does not contradict the Constitution of the Russian Federation and international treaties, valid for Russia, as well as moral standards. Based on this, in order to understand the social conditionality of the criminal law prohibition of torture, it is necessary to carry out its examination for compliance with the named criteria for the criminalization of acts.

As already noted, in order to criminalize an act, it is necessary, first of all, to determine its social danger, since it is the social danger of an act that is considered in criminal law science to be the decisive, determining criterion for its criminalization. However, despite the fact that public danger is a basic category of criminal law, the literature does not reflect the unity of opinions in understanding public danger.

So, N.F. Kuznetsova believes that “the social danger, the harmfulness of an act consists of causing or creating a threat of causing damage to the interests protected by the Criminal Code” 5 . A.V. Naumov states: “Public danger is the ability of an act provided for by criminal law to cause significant harm objects protected by criminal law” 6. A.I. Martsev defines social danger as “the property of each crime individually and all crimes taken together to produce significant negative consequences in society.” social change: security breach is vital important interests person, society and state." According to Yu.I. Lyapunov, “a criminal legal social danger is a certain objective antisocial state of a crime, determined by the totality of its negative properties and signs and containing a real possibility of causing harm (damage) to socialist social relations placed under the protection of the law.”

Analysis of the above points of view on the understanding of social danger in criminal law allows us to state that an act should be recognized as socially dangerous if it causes or at least creates a threat of harm (“contains a real possibility of causing harm”) to public relations, interests protected by criminal law .

Traditionally, public danger is considered from two sides: qualitative - the nature of public danger and quantitative - the degree of public danger. The above two indicators of public danger are interrelated. To recognize an act as a whole as socially dangerous, it is necessary that it have appropriate qualitative and quantitative characteristics.

An act may encroach on relationships protected by criminal law, but if the degree of causing harm or creating a threat of harm does not reach the required level, then such an act cannot be considered socially dangerous in the criminal legal sense. As an example confirming this thesis, we can cite the situation with theft in the form of theft. Theft encroaches on property relations, which, according to Part 1 of Art. 2 of the Criminal Code of the Russian Federation, are protected by the Criminal Code of the Russian Federation. However, if the value of the item of theft does not exceed a thousand rubles, and there are no qualifying signs of theft provided for in Part 2, 3, 4 of Art. 158 of the Criminal Code of the Russian Federation, then such an act in accordance with the note to Art. 7.27 of the Code of the Russian Federation on Administrative Offenses is administrative offense. It turns out that the harm caused (or the threat of harm) to social relations and interests protected by criminal law must reach a certain degree. Therefore, those authors are right who, when proposing a definition of social danger, focus on the significance of what is caused or possible harm(A.V. Naumov, A.I. Martsev).

As noted in the Resolution of the Plenum Supreme Court RF “On the practice of assigning criminal punishment by courts” dated June 11, 1999 No. 40 (which has now become invalid due to the adoption of a new resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 dated January 11, 2007 “On the practice of assigning criminal punishment by courts of the Russian Federation punishment"), "the nature of the public danger of the crime depends on the object of the offense established by the court, the form of guilt and the classification by the Criminal Code criminal act to the corresponding category of crimes (Article 15 of the Criminal Code of the Russian Federation), and the degree of public danger of the crime is determined by the circumstances of the crime (for example, the degree of implementation of the criminal intent, the method of committing the crime, the amount of harm or the severity of the consequences, the role of the defendant in the commission of the crime in complicity" 9. Together However, it is difficult to recognize such a formulation as impeccable. In particular, it determines that “the nature of the public danger depends on... the classification of a criminal act by the Criminal Code to the corresponding category of crimes (Article 15 of the Criminal Code of the Russian Federation)." regulating the categories of crimes, we see that crimes are divided into categories depending on the nature and degree of public danger. That is, the category of a crime depends on its nature and degree of public danger, and not vice versa.

The legislator considered the torture provided for in Part 1 of Art. 117 of the Criminal Code of the Russian Federation, to the category of crimes moderate severity (maximum punishment The sanction is imprisonment for up to three years), and the torture provided for in Part 2 of Art. 117 of the Criminal Code of the Russian Federation, - to the category serious crimes(the maximum penalty in the sanction is imprisonment for a term of up to seven years). From here we have that the main elements of torture (Part 1 of Article 117 of the Criminal Code of the Russian Federation) are equated in terms of severity to such crimes as, for example, privileged murders(Articles 106, 107, 108 of the Criminal Code of the Russian Federation), qualified types of causing death by negligence (parts 2, 3 of Article 109 of the Criminal Code of the Russian Federation), intentional infliction of moderate harm to health (Article 112 of the Criminal Code of the Russian Federation), etc. d. In turn, qualified types of torture are equivalent in severity to the main and qualified elements of intentional infliction. grievous harm health (parts 1, 2 of article 111 of the Criminal Code of the Russian Federation). It is noteworthy that in Chapter 16 “Crimes against life and health” there are no other serious crimes. A natural question arises about the validity of the legislator’s attribution various types torture to the named categories.

The nature of the public danger of a crime is determined, as noted in the above-mentioned resolution of the Plenum of the Supreme Court of the Russian Federation, by the object of the attack. Without going into details legal analysis object of torture in the framework of studying its socio-criminological conditionality, we note that torture is a crime against human health, which is rightfully considered one of the most valuable objects criminal law protection. More important object is only human life, but more socially dangerous acts by their nature they are attacks on human life. This statement is supported by the following.

In Chapter 2 of the Constitution of the Russian Federation “Rights and freedoms of man and citizen”, after the proclamation of the human right to equality (Article 19), the human right to life (Article 20) is declared, and then the right to dignity and health (Article 21). Part 2 Art. 21 of the Constitution of the Russian Federation states that “no one should be subjected to torture, violence, or other cruel or humiliating human dignity treatment or punishment. No one can be without voluntary consent subjected to medical, scientific or other experiments.”

Comprehensive protection of human health, as follows from the provisions of such international legal acts as the Charter (constitution) world organization Health (WHO) (adopted in New York on July 22, 1946), Universal Declaration human rights (adopted on December 10, 1948 by the UN General Assembly), etc. is one of the most important tasks of the state. The same task is fixed in a number of Russian normative legal acts(for example, Fundamentals of the legislation of the Russian Federation on protecting the health of citizens.

Torture grossly violates the human right to health and integrity, humiliates and insults human dignity. At the same time, the victims of torture are often defenseless or vulnerable people. These are women, children, the elderly. As is known, violence and torture are also widespread in the sphere of family and household relations. In such cases, such acts have a detrimental effect not only on the physical, but also on the mental health of both the victims of torture and their relatives, which further confirms the thesis about the social danger of torture.

The second aspect of the social danger of an act is its degree. Of course, independent consideration of the quantitative side of public danger is only conditionally permissible, since in most cases the nature and degree of public danger are interrelated and interdependent. A close relationship between the nature and degree of public danger is characteristic of such an act as torture.

The degree of public danger of torture is determined by the “depth” of damage to the corresponding object of criminal legal protection. Much in this world is learned by comparison; by the method of comparison it seems possible to outline the degree of social danger of torture.

Torture along with intentional infliction of harm to health ( varying degrees gravity), beatings impinge on human health. At the same time, from the text of the disposition of Part 1 of Art. 117 of the Criminal Code of the Russian Federation it follows that the composition this crime will be absent if, as a result of torture, serious or moderate harm to health was intentionally caused. At the same time, the main elements of torture (Part 1 of Article 117 of the Criminal Code of the Russian Federation) are placed by the legislator in the same category of severity with the intentional infliction of moderate harm to health (Article 112 of the Criminal Code of the Russian Federation), and qualified elements of torture (Part 2 of Article 117 Criminal Code of the Russian Federation) are compared in this perspective with the main and qualified personnel intentional infliction of grievous harm to human health (parts 1, 2 of Article 111 of the Criminal Code of the Russian Federation). This situation seems fair to us. Despite the fact that during the commission of an act qualified as torture, grave or moderate harm to health is not caused, high degree the public danger of torture is due, firstly, severe consequences another kind - physical or mental suffering, and secondly, the method of committing the act, which is systematic beatings or other violent actions.

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Consider the law enforcement activities of government agencies and officials as a type of social relations means to study it in the conditions of a historically defined social situation. The specificity of the latter, as is known from the previous ones! sections of the book, is determined by the peculiarities of the structure of social (economic, political, etc.), socio-psychological and personal factors operating in; society in given time. In the context of this, we can talk not only about social, socio-psychological and; personal mechanisms of action of criminal law laws

pretov, but also about the effective mechanisms for applying criminal law in general.

The classification of social factors adopted in the book is, in principle, the same as that used in the general sociology of law, where last years a hypothesis of a three-stage action of law was formulated. Its authors are based on the fact that abstract legal regulations influence socially significant behavior through three main variables: firstly, through a complex of socio-economic conditions of this type social order; secondly, through the type of subculture, which, as is known, is concentrated in small groups, socio-psychological in nature, and thirdly, through the type of personality10. Equally, the general sociology of law includes these social variables among those through which the law enforcement activities of officials are refracted as special case social behavior.

It is easiest to record the influence of differences in socio-historical conditions on law enforcement activities during the revolutionary change of one socio-economic formation to another. There is no need to prove that even in cases where the same action is considered criminal in different societies and when similar criminal punishment is provided for its commission, the existing legal norms are applied unequally. A change in socio-economic formations also means a change in the ruling class, and therefore a replacement of the criterion for social danger of a number of crimes. What is dangerous to the bourgeoisie may not be dangerous to the proletariat or not to the same extent. Marxist-Leninist sociology openly proclaims the need for a class approach to assessing the criminal legal significance of human actions. " New court was needed primarily for the fight against the exploiters...”11,” said V.I. Lenin.

Moreover, old uniform in a new formation acquires a different content and often the opposite of the previous one social significance. In this case, the nature of law enforcement activity plays a huge role, on which it largely depends on what public meaning will be attached to the norm of the old law. Taking into account these properties of law and law enforcement activities, the authors of the Decree on Court No. 1 included in it

an indication of the possibility of applying the previous rules of law after the revolution. “Local courts,” declared Art. 5 of the decree - they decide matters in the name of the Russian Republic and are guided in their decisions and sentences by the laws of the overthrown governments exclusively insofar as they have not been abolished by the revolution and do not contradict the revolutionary conscience and revolutionary sense of justice”12.

The nature of law enforcement activities is also changing. within the same socio-economic formation as social situations change during its development. In the first months of the existence of the Soviet state, for example, the application of law was not yet isolated from lawmaking as a type of state activity: both the creation of law and its application were carried out directly by the revolutionary population. As V.I. Lenin pointed out, “the people, the mass of the population, unformed... “accidentally” gathered in this place, herself and directly appears on the stage, she herself carries out justice and reprisals, applies power, creates a new revolutionary law”13. Only as state bodies are formed and differentiated, law-making function, the development of criminal and criminal procedural law, the application of relevant legal norms is gradually becoming the exclusive prerogative of state law enforcement agencies.

Having formed as an independent function of the socialist state, law enforcement activities began to be aimed at ensuring that the resolution of specific cases was carried out in the interests of the people and on the basis of strict compliance with the law. The development of this general tendency, however, did not always go smoothly. Moreover, the law itself sometimes gave grounds to deviate from the basic principle of applying criminal law norms - to impose punishment, guided exclusively by the specific norm of a special part of the criminal codes, which clearly outlines the elements of all crimes. Yes, Art. 49 of the Criminal Code of the RSFSR of 1922 established that “persons recognized by the court for their criminal activity or in connection with criminal environment socially dangerous in a given area may be deprived by a court verdict of the right to stay in certain areas for a period of not more than three years.” A norm similar in content was included in the Criminal Code of the RSFSR of 1926 (Article 7)

Change social conditions influenced the interpretation of certain criminal law norms. Yes, Art. 107 of the Criminal Code of the RSFSR of 1926, which established liability for profiteering, under collectivization was applied to kulaks in the event of their refusal to sell surplus grain at fixed prices, and the Plenum of the Supreme Court of the USSR, in a resolution of April 3, 1940, explained that Art. 90 of the same Criminal Code, which provided for liability for arbitrariness, should also apply to such offenses as unauthorized cultivation of land in personal purposes, which the legislator could not have had in mind at the time of issuing this law, since this type of crime appeared later14.

Closely related to the specified area of ​​law enforcement activity is arbitrage practice, which, through the use of the institution, created analogies for several new crimes that were later included in criminal codes (for example, economic counter-revolution). The connection of judicial practice with the socio-economic and socio-political situation is obvious. Assessing it, A. A. Piontkovsky narrated: “At the same time, what was politically expedient and useful for strengthening the socialist state and the socialist legal order in some historical conditions could cease to be so in others. Therefore, after the liquidation of the exploiting classes in our country, in the interests of strengthening socialist legality, it was advisable to recognize that no one can be prosecuted or punished for an act for which criminal liability is not provided for by law.” This was the reason for the rejection of analogy, which “should have forced great attention relate to the question of the correct qualification of the committed act”15.

Finally, it is easy to document the influence of social conditions on the practice of determining the severity of an offense. The general trend of changes in law enforcement activities will be quite clear here: a more complex economic and political situation necessitates the use of more severe penalties (for example, in conditions of war or collectivization). At the same time, there were also fluctuations in the punitive activities of law enforcement agencies that were caused by subjective errors in assessment social danger of a number of crimes, degree of severity

socio-political situation, etc. Thus, the resolution of the Central Executive Committee and the Council of People's Commissars of the USSR dated August 7, 1932 “On the protection of the property of state enterprises, collective farms and cooperation and the strengthening of public (socialist) property” undoubtedly played a role important role in protecting the emerging economic basis of socialism under construction. At the same time, as noted in the literature, in the first time after the publication of this law, “court and prosecutorial authorities went to extremes in assessing the social danger of certain types of encroachment on socialist property. The law was either not applied at all, or was applied without taking into account the nature of the public danger of specific acts and the properties of the subjects of crimes”16.

The above sufficiently proves the fact of the influence of the social situation on the nature of law enforcement activities of state bodies. At the same time, the sociology of criminal law has established other channels of social influence on the application of legal norms. Among them, the most important will be the one that is carried out through cultural institutions and various subcultures.

The sociology of law has documented the influence of culture on the application of criminal law, observing how similar crimes, equally qualified by law, are assessed differently by law enforcement agencies depending on local, incl. national, characteristics of the administrative unit in which current affairs are considered. The mechanism of this influence is complex. It is worth saying that for a sociologist, a lawyer who does not experience any influence from society other than the influence of the law represents an exclusively theoretical abstraction. In fact, his perception of both the law and the crime assessed by the law is mediated by a variety of cultural values ​​and norms he has adopted, starting from the rules of morality and ending with the value systems adopted in those primary informal groups of which the official will be a member. Consequently, in reality the conclusion about guilt or innocence, about the degree of social danger of a crime, etc. is mediated by many cultural norms, the action of which intersects in the personality of the law enforcer. Under such conditions, the most conscientious application of criminal law can give rise to various legal consequences depending on the particular

the benefits of the interaction of cultural norms and their influence on the personality of the law enforcer.

Moreover, sociological studies have shown that a professional subculture, sometimes widespread exclusively among a relatively small circle of people who apply criminal law, also plays a significant role. For example, it has been established that prosecutors specializing in cases involving minors evaluate the latter’s actions differently than prosecutors who do not work with minors, and, of course, not in the same way as judges and lawyers.

It goes without saying that the specificity of the action of cultural institutions does not cancel the action of general sociological laws, being subject to them. In particular, on. The strengthening of cultural norms by officials of law enforcement agencies of the state is also influenced primarily by the characteristics of their social destinies, which are formed under the influence of social origin, the specifics of upbringing and education, social circle, etc. Even bourgeois sociologists are forced to admit that at every point of connection of the legal system with the larger society, legal processes reflect the structure of the larger society. Specifying the general position, they argue that where law is connected with society as a whole, the legal process always expresses the fact of social heterogeneity of the population, primarily its division into classes.

Research shows that “although, for example, a jury is conceived as a democratic institution, the stratification of the community is reproduced in the composition of the jury, and through the jury, the stratification system of society (i.e., its social structure - L.S.) affects the legal process” 17.

In the same way, the effect of cultural norms on law enforcement activities is mediated by the social class position and origin of its participants, which largely determines the characteristics of those cultural values ​​that will be perceived by judges or people's assessors, employees of the prosecutor's office or internal affairs bodies.

A place where interaction or even struggle between different cultural values and norms, as was shown in Chapter VII of the book, there will be a primary small group, which is the court. It is there that the professional subculture of the judge and his experience collide

And specialized knowledge law with the legal representations of people's assessors - people who are professionally unfamiliar with criminal law and evaluate the criminal and the crime he committed from the point of view of certain cultural values, in particular moral norms. The extent to which these cultural elements will be reflected in the collective decision of the court largely depends on the type of group activity of the judges in the deliberation room.

In the USSR, professional profiles (models) of a judge, prosecutor, investigator, operational worker internal affairs bodies have not yet been created, and today it is still impossible to talk about the development practical recommendations, which should be used when selecting personnel for manufacturing specialties. Numerous proposals to apply all kinds personality tests clearly premature.

The problem of social conditionality of law enforcement activities as a whole requires further methodological justification and provision of empirical data. It is possible to outline two main directions of empirical research on this problem: 1) the study of the prerequisites for the application of criminal law and 2) the study of social and socio-psychological factors of the very application of criminal law norms,

1. Typically, the starting point for studying the activities of law enforcement agencies that create the prerequisites for the application or directly apply the criminal law is considered to be the receipt of a “signal” from the “environment,” i.e., the receipt of a written or oral report about an event by the internal affairs bodies, the prosecutor’s office or the court, which, with varying degrees of probability, may turn out to be a crime. IN real life This moment is most often preceded by a decision by the source of information to contact the competent government authorities. But everyday experience shows that this does not always happen18 and depends on a number of circumstances. It is worth saying that in order to make a decision whether or not to contact law enforcement agencies with the final statement, the subjective assessment of the event by the person to whom it became known is essential. It is worth noting that it may not consider a socially dangerous act known to it to be a crime or evaluate it as insignificant. It is worth noting that it may believe that the law unfairly imposes too severe a punishment for committing an act, or abandon the intention to convey information in accordance with the law.

the relevant authorities for any other subjective reason. In all cases, the decision of this person will be influenced by social factors, personal (for example, his social status, level of education or legal knowledge) and general (for example, the features of modern criminal policy, the level of legal awareness of the population or the state of legal propaganda) order, specific characteristics of the actions of which are the subject of future sociological research.

The second starting point for the application of criminal law will be the proper reaction of the addressee of the “signal”, i.e. the implementation by law enforcement agencies provided by law actions to register messages, evaluate information received and accept necessary measures. The content of the decision of the acting official is determined by a number of circumstances and depends, in particular, on whether it is necessary to collect additional information to clarify the message received; from the features of modern criminal policy and the system of assessing the activities of the criminal justice body, which may not stimulate or even hinder the registration of crimes committed; from level vocational training workers, their sense of justice, discipline, etc. The specific features of the action of all these factors have also been little studied and are therefore of interest as a subject for future research.

2. When assessing the factors affecting the application

criminal law as such, it should be taken into account that

it is implemented in criminal procedural activities

law enforcement. Result of application for

the law is expressed here in the qualification of the act, recognized

constituted by a crime, under one or another article of the Criminal Code

th code. At various stages of the criminal process

the body of inquiry, investigator, prosecutor, court must

sift into procedural documentsϲʙᴏth conclusion about

responsibility or nonϲᴏᴏᴛʙᴇᴛϲᴛʙi act according to the criteria

corpus delicti. If the conclusion about such a correlation

statement cannot be made, procedural relations

research loses its basis and stops, and the investigator

but the grounds for applying criminal penalties also disappear

Since the legal completion of the process of proof will be entered into legal force court verdict, all pre-trial findings were fairly considered by 1

are presented as preliminary “versions”, “hypotheses” “for the subsequent qualification of the crime, when the necessary circumstances of the case are established and doubts are eliminated”19. At the same time, the already conducted studies-70 provide grounds for the conclusion that there is a relationship between the inquiry, the investigation, the court and the decisions made there, and that the activities of law enforcement agencies in the legal assessment of crimes are influenced by a number of special factors (for example , the quality of the preliminary investigation and trial) and general (for example, a change 3 in criminal policy, the adopted system for assessing the work of a particular law enforcement agency) of a nature. Establishing social and socio-psychological patterns of application of criminal law norms is the main content of this direction of research.

1. Laws, if they are the embodiment of law and not arbitrariness, must reflect the objective legal needs of society, which in turn are determined (conditioned) by the content of economic, social, political, ideological and other spheres. Therefore, jurisprudence is normative form reflections of social life.

2. Social conditioning rules of law is also caused by the natural inequality of people, which is original and natural, and cannot be leveled by any other means except social ones, in the system of which special role is given to the right. Through law, inequality can be strengthened, or it can be smoothed out. History shows that there have been many attempts and searches to find rational mechanisms for smoothing out natural inequalities. At the same time, history shows that science cannot selectively determine in what proportion the relations between the existence of natural inequalities should be preserved and what efforts should be made to erase these inequalities. Under the influence of ideological and opportunistic interests, there were attempts to introduce a system of equalizing relations and, as the experience of our country shows, this led to a sharp decline in dynamic development.

In order for legal norms to truly be a reflection of real social relations and productive in their regulation, serious sociological consequences are needed, designed to reveal the relationship of various factors in the content of legal norms.

To understand the essence of the law-making process, it is necessary to highlight the stages that reflect the social conditionality of law-making activity ( government activity, as a result of which a system of legislative acts and other legal norms is formed, maintained and developed).

The state will in a legal norm is realized through:

A) Sanctioning already established norms of behavior

b) Direct development of new norms by competent law-making bodies

The formation of legal norms includes understanding the following:

1. Who proposes and changes decisions and how?

2. Who applies these solutions and how

3. What is the probability of their change

4. What economic, political, social and ideological factors determine the adoption of these norms

5. What interests social groups they reflect

6. How the law is implemented

7. What is their effectiveness?

Periodization lawmaking process consists of six stages:

1) Stage of determining the conditions for the adoption of a legislative act

2) Stage of preparation of the text of legislation

3) Project discussion stage

4) Stage of submitting the project for consideration legislature(the motivation for passing the law is important)

5) Stage of discussion of the project in the legislative body

6) Stage of entry into force of the act

All listed social problems The lawmaking process can be divided into three main groups necessary for study:

I Public relations, others social phenomena and processes that cause the need (necessity, desirability) for legal regulation and corresponding social institutions, in which they are the reasons for legislative initiative.

II Social relations in the mechanism of law-making activity, stimulating inhibiting or modifying its development (the interests of the participants in this process apply here)

III Public opinion, interests and attitudes of the population of citizens and officials who are not directly involved in the preparation of bills.

Taken together, these three groups characterize the problem of the social conditionality of law in its main aspects:

Objective and subjective

Social and socio-psychological

Internal and external