5.Уголовное
право
и
криминология.
Humanistic
essence of the right and its reflection in criminal law
Kazakhstan
For
the modern criminal law than ever need to understand the general purpose of
law, the penetration into the essence and spirit of the law for the following
reasons. For a long segment of the historical development of criminal law has
developed autonomously, and its connection with the original spirit and intent
of the rule is lost. Therefore, no communication with the basic moral
principles and derived from them the legal principles of criminal law has long
maintained a very punitive. Joining the international community in the new
stage of development - the age of globalization and informatization imposes
special challenges to the law as a whole, hence the need to change the angle of
view, and criminal law. Legal principles and values, including the criminal
law, according to the imperatives of reason are called to uphold and promote
the "reasonable, good and eternal." Plato and Aristotle, who lived in
the V-IV centuries. BC thought: man is by nature a social being; the individual
is only part of a larger whole - society; inherent in the human community has
begun to give it the ability to understand and collaborate with others.
Aristotle
Roman philosophers and legal scholars embraced the idea of
contrasting the positive law of justice, the latter expressing
the term "aequitas" (tracing from the Greek word meaning justice in
contrast to the officially established law). This borrowing impact on the
consolidation of the concept of positive law (ius positum) as ius. If the first
and ius aequum were synonymous and "aequum est" meant "ius
(iustum) est", expressing the idea of normal, proper,
respectively, then later ius perceived as rigid and fixed, which may not always
respond to the natural order of things, whereas "aequum" gets a shade
of meaning and ethical acts together "bonum et aequum" (good and
right). Said opposition reflects the depth of change in the social life of
ancient Roman society era and the need to correct the legal system. Work in
this direction and Pretoria, law-making which is based on the idea of
aequitas. Pretorskim origin litigation "ex bono et
aequo" contrasted iudicio stricti iuris (litigation strict rules). In the
practice of law has become so common to defend justice contrary to established
law, which, according to Cicero, the boys in ritorskih schools studied, divided
into parties, to defend one - written law, while others - justice [1, p. 105].
The
principle of justice played a role in the interpretation of the guiding ideas
of norms of Roman law, filling existing gaps in it.
Not
excluded in this tendency to hostility, hatred and violence. In his treatise
"Politics" Aristotle pointed out the sources of strife, which, in his
opinion, consists in the inequality of people owning property and receiving
honors, as well as arrogance, fear, neglect, the intrigues, the dissimilarity
of characters, excessive elevation of some and the humiliation of others.
Formation
of humanism in terms of the system dates back to the Renaissance. Although
Encyclopedia of Philosophy also indicates the origin of an earlier sense of the
word, which goes back to the ancient East: development of ideas of humanity
(jen) in China took place in VIII-XII centuries. The humanistic thought in
Central Asia, Georgia and Armenia enters into poetry, philosophy, and scientific
literature in X-XII centuries. The emergence of humanistic ideas in Russia
belongs to the XV-XVI centuries.
It
was then in the scientific revolution has entered the word "humanism"
(human dignity), which took over the revivalists of Confucius, Cicero. "The
meaning of humanism they saw in the love of man," love for all "[2,
p. 17]. In the next era of love as the main value of life gradually weakened,
because human culture brought from the jurisdiction of the Absolute, leaving
the man alone with himself.
Basis
of humanity were in Chinese culture piety and respect for the elder brothers.
Subsequently, this Confucian setting is reflected in the practice of law: were
issued laws prohibiting inform on their parents. The decree of 66 BC Emperor
Xuan Di ordered that the son harbors father and mother, wife hides her husband,
grandson covers grandparents, and in the medieval code of laws on informing the
father, mother, grandfather, grandmother was punishable by death. All this is
an indicator of culture and humanity of the tribal system, implemented in a
variety of human relationships.
The
concept of "humanism" is interpreted now as a system of values, in
the center of which the recognition of a person as the highest value, the
recognition of the universal significance of human life as a whole and each
individual in particular. Man is regarded as the ultimate goal of social
development. Implementation of the principles of humanity in modern society
means focus on human values that are important not only for one
group, class, party people, but for all mankind, for values that
are absolute, ie, eternal values. Human values are not an
invention of some specific people, reflection and expression of social
interests of any - or social communities, they are permanent, neperehodyaschy
character. That is why human values serve as an ideal regulatory
ideas, patterns of behavior for people in the era of democratization.
Dictionary
of Foreign Words interprets humanism as "outlook, based on the principles
of equality, justice, humanity, human relations, imbued with love for people,
respect for human dignity, concern for the welfare of people."
Interpretation comes from the Renaissance. Encyclopedia of Philosophy
indicates, as mentioned above, to an earlier origin of the meaning of the word.
Most
humanists was the ideal social system, reconciling the interests of all
classes, which provides civil rights, freedom from oppression. Political theory
humanists was not determined as an ideology of one of the classes. It sought to
ensure that protect the interests of man in general. Humanists do not turn a
blind eye to the social antagonisms of his time: conflicts between church and
secular authority; the struggle between the bourgeoisie and the nobility, the
uprising of townspeople and peasants revolt. The first era was the need inner
peace, and more - universal peace among nations.
In
the name given to this outlook reflects the reorientation of human thought, a
study aimed at the creation of human hands - humana studio. From this term the
concept of humanism formed.
In
1820 was published "Philosophy of Right" German philosopher-Hegelian
dialectic (1770-1831). The main idea of his work is the provision
that the science of law is part of the philosophy. VS Nersesyants rightly
observes that the right is seen by Hegel as freedom (the idea of
law) as defined stage and form of freedom (special law) and the
law (positive law). And the whole history of mankind is understood by him as
the gradual development of awareness of freedom.
Nobody
gave so important knowledge system, as Hegel. Such a system has and his
philosophy of law, where the essential part of the rule is called abstract
right, morals and ethics. Abstract right divided his property, contract and
violation, while in the property of one person will manifest - the subjective
will, the agreement will of several persons in the offense - one will against
the will of another person. The opposite of abstract moral law is representing
the area should, not possible. The moral of his shares in the intent and guilt,
intent and good, good and conscience.
Interesting
are the views of the representatives of the natural law. "Natural law -
wrote St. Michael IV, - is a set of the most general principles, norms, follows
directly from the absolute idea of law and with the nature of
eternity, immutability and unconditional obligation for all times and
peoples" [3, p. 201].
Problems
of humanization of all spheres of social life with renewed vigor and acutely
risen in recent years. This is due to a number of subjective and objective
conditions. On the one hand, it is related to socio-economic development of the
course, which is fundamentally different from the pre-existing socialism. With
the emergence and development of a new economic model has changed the mentality
of the public, new value systems. On the other. Hand, international
integration, the growing influence of the western world in the Central Asian
region caused rethinking the role of the individual in society. Liberalization
of social processes, the global role of the individual and its interests in the
system of value preferences and life goals of priority in public policy many of
the leading countries in the world have a huge impact on the development of
society and the state, encouraged to harmonize and humanize the whole modern
system, including legal.
The
modern interpretation of law is based on the proposition that the right is the
measure of freedom and human rights guarantees. The scientific literature has
come to dominate the libertarian - a legal interpretation of the law (VS
Nersesyants), based on the idea of law as a form of individual
freedom. Legal equality and freedom is the essence of modern law. The
requirement of social justice and freedom act as interrelated properties of
modern law.
In
the current environment becomes vital comprehensive protection of the
individual, his interests from various threats, actualized person the freedom
to choose the content and form of initiation to the world of spiritual culture
for self-realization of their potential and manifestation of their identity.
Without
interest in this connection is to appeal to the origins of the Kazakh national
philosophy. A specific feature of the Kazakh philosophy is a holistic perception
of the painting of man and the world. It is based on practical, social,
spiritual wisdom. Kazakh chelovekoponimanie, chelovekoznaniya rooted in
religious, Sufi, semantic and symbolic understanding of man. Kazakhs say:
"Er - ate Corgan," ie, "ER" - the defender. To become a
worthy defender of the people EP should have the following qualities in
themselves, based on the basic values of moral - spiritual
framework of ethics Kazakhs: 1. Sana - the mind in conjunction with the
responsibility for the act; 2. Sezim - the harmonious development of feelings
corresponding principle of "do no harm to people"; 3. Ar - honor,
dignity; 4. Ұyat - conscience; 5. Namys - pride; 6. Қanaғat - the ability to be content with little; 7. Talap - the desire to
become "bir syrly, Segiz қyrly", ie be
monolithic and at the same time, octagonal as crystal diamond, which means to
be spiritually whole and at the same time fully developed [4, P. 135].
How
should embody these fundamental philosophical concepts in the minds of the
Kazakhs development philosophy of criminal law of the Kazakhs. It's hard to
say, because in the perception of Western values have to abandon
their worldview. Blind imitation of the main provisions of the criminal law of
Western thought is fraught with ignorance and fragile psyche as created by the
gap between the moral and psychological state of the bulk and criminal law. By
legal idealists should classify all those who believe it possible to restore
order in the country exclusively through legal institutions.
Start
with morality, which is actually the basis of law. Indeed, in most cases, a
person does not overstep the law not because of fear of punishment, and in view
of the stability of its moral imperatives [5, p. 38].
However,
it must be noted that the relationship of law and morality is far from clear.
"The content of the law is the only external liberty - wrote Prince EN
Troubetzkoy at the end of the XIX century. - The content of morality is good,
or good, and the requirements of good can relate to the scope of internal and
external manifestations of our freedom as a person of action, and his moods.
" He likened the law and morality of two intersecting circles, having
certain common area - the intersection of the sphere in which the provisions of
the same, and represented them as "two separate areas in which there is
not a part of their requirements converge with each other, often directly
contradict each other" .
LS
Abdrashev exploring the views of Kant and Hegel notes that in their work,
provided for an important principle of criminal law, which can be formulated as
follows: is not whether the civil society and the state of the responsibility
for the fact that a person commits a crime. If society has a responsibility, it
should be considered by the court as a mitigating factor. It is known that in
countries with economies in transition, in times of economic crisis increases
the number of property crimes. During the economic crisis, a person can commit
such crimes due to lack of livelihood: unemployment, hunger, etc. These reasons
in relation to an individual can be objective and irresistible character.
Next
LS Abdrashev notes that the person committing acquisitive crime in the period
of economic stability, as he has a stable source of income, more dangerous than
when he commits the same crime in times of economic crisis. In considering such
cases the court must take into account the specific circumstances of life in
which a person has committed a crime.
If
a person commits an acquisitive crime in severe confluence of economic
circumstances and in order to survive, then, according to Hobbes, it is
necessary to consider the state of self-defense. He writes: "If a person
is deprived of food or any other necessities of life and can save yourself a
commission of illegal acts, such as if a great famine he or rob or steal food,
which he can not get any other way - that it can not be blamed "[6, p.
152].
Thus,
the reference to the sources of law has its meaning grasp the logic of law, the
foundations of legal reasoning, the basic principles of law and the restoration
of the link between the humanistic essence of law and criminal law, as modern
self-contained, self-development of criminal law is able to make it to a
standstill. Need constant correction humanistic goals and essence of criminal
law. In this regard, recall the expression Wiener: "In vast areas of the
law is no satisfactory semantic consistency between the objectives of law and
considered them a real set of circumstances" [7, p. 120]. It seems to
resolve this contradiction and promote the principles of humanism in the
criminal law.
For
its part, we note that the reference to the origins of law has allowed us to
take a look at some of the principles and concepts of criminal law with fresh
eyes and explain why, for example, why the principle of the presumption of
innocence until now interpreted the principle of criminal procedural law.
The
right of each new era in terms of historical development - step on the path of
progress. The new era requires a reorientation of human thinking about criminal
law. There is a process of crystallization of a new planetary social
consciousness based on human values as a person, his rights and
freedoms, equality and social justice.
Criminal
law can not exist in isolation from the general purpose of law and justice in
understanding the law. Question about humanism criminal law is part of the
general problem of humanism law. As the member of the Russian Academy of
Sciences VS Nersesyants "Lawyer of the non-lawyers are distinguished -
first of all, and ultimately - understanding of the law, the penetration into
the essence and spirit of the law, rather than knowledge of certain legislative
acts" [1, p. 21].
References:
1. Wait for DV Roman
private law. - M., 1999. - 320 p.
2. AF Losev The
aesthetics of the Renaissance. - M., 1982. - 271 p.
3. Kuznetsov EV
philosophy of law in Russia. - M., 1989. - 201 p.
4. Izbaeva GD Modern
views on the Kazakh philosophy // Proceedings of the international
nauno-practical conference "Actual problems of state and legal
construction of the Republic of Kazakhstan", dedicated to the 10th
anniversary of the Kazakh State Law University. - Shymkent, 2004. - p.135.
5. Fedotov The right of
the media in the Russian Federation. - M., 2001. - 54 p.
6. Abdrashev LS Natural
Law: Theory and legislation. - Karaganda, 2004. - 152 p.
7. N. Wiener Man
manager. - SPb., 2001. - 109 p.