Professor Andreeva O.A

Taganrog Institute of Management and Economics, Russia

History as a basis for continuity in legal science

The history of law examines a wide range of facts and problems associated with the formation of legal concepts, basic legal institutions, branches of law, using legal monuments. It analyzes the process of legal consciousness formation, ranging from antiquity to the present time. The origin of the concept of "criminal law" is still some controversy in the legal history of Russia. Some authors attribute its origin to the ancient definition of murder as "golovshina" , or killers as "golovnic", or punishment "polovnichestvo", which in the case of the murder was carried out in the form of indemnification damages caused to the family of the deceased. In the monuments of the Russian literature related to the descriptions of the crimes and punishments there was used the expression "ugolovit" that is, to deprive of life, or rather the head.

The origin of the concept “criminal law” also related to the Latin word “capitalis” , which meant various sanctions according to the Roman Law, such as: the deprivation of life, liberty, property or the status of a Roman citizen. M. M. Speransky wrote that criminal penalties are those which concern the head, that is, life, “diminutio capitis”, and the life of every person in society is threefold either it is physical, political and or civil one; the latter two are called the rights of the state. Chastening, directly distressing or impairing the existence or status of a person has a criminal punishment". Therefore, punishment in criminal law is aimed at ensuring order and security, the protection of the interests of individuals, society and the state, thereby ensuring stability of their development.

The concept of criminal law is connected with the emergence of laws establishing a system of penalties for the crime as socially dangerous, wrongful acts. Giving the definition for “criminal law”, N. S.Tagantsev wrote that "the criminal act from the legal point of view implies two separate points: attitude of the criminal to the legal interest protected by law and the attitude of the state to the criminal caused by the criminal as a crime against the state, called by them as a criminal act, punishment. Hence, the dual name of the science is: jus poenale and jus criminale, droit penal, droit criminel, Strafrecht and Criminalrecht. However, there isn’t such duality in our legal language, and it uses a single term: "criminal law". When determining the nature of criminal law there may be a criminal act in the foreground, then the punishment must be its inevitable consequence, but there can be the main and the punitive state action too. Thus, criminal law is a set of legal rules established by the Supreme legislative authority of the state to regulate and protect public relations against criminal attacks.

According to the norms of the Russian Truth, one of the monuments of ancient Russian law stated that the subjects of crimes could be only free people. When analyzing the ancient monuments of law, it is clear that since ancient times in Russia there were developed a substantive law and effective methods of its regulation as well as protection measures aimed at its implementation in the judicial practice. In ancient Northern Russian statutory certificates lynching was seen as a self-made crime. For example, Article 6 of the Dvinsk Charter said: "A lynching is the act when the thief is caught red-handed, and smb’s property has been taken". According to the Russian Truth self-punishment of a thief is also forbidden (V. 40 PM): It says:"...if the thief is alive until dawn, then you must take him to the Royal court. If the thief is killed, and the third-party people saw him tied, you must pay 12 grivna. The prohibition of lynching was caused by the development of criminal concepts and consciousness of state and social harm of crime.

The emergence of the Russian Truth is connected with the necessity of establishing a just law under the rule of revenge and tyranny. The law specifically identified and expressed the conditions that allowed fairly and quickly to satisfy the outraged feelings of the injured party. Once it was considered the crowning of legal thought, absorbing the results of the previous practice of customary law. The Russian Pravda including as a total 17 articles, is considered to be the beginning for the further development of the national law, which enshrines the concept of justice and the rule of law. Ancient Russian law laid the foundation for the real law having specified the notions of crime and punishment. Moreover, to limit the practice of blood revenge it had to have the authority, procedural law and the ways of its protection.

Yaroslavl’s the Wise sons prohibited revenge (V. 2, p), protected the thief from lynching (article 40 PPT), introduced punishment for free man in the case of a slave murder (V. P. 89 P.), imposed penalties for the most part not on the offender but his property, etc. At that time, they gave more rights to the knayz to control the execution of court decisions and, in particular, the right to fixed penalties for illegal actions, seizure of property from unlawful possession etc. Describing the changes, the chronicler shows that knayz Vladimir opened and softened the hearts of the people, knayz Yaroslav filled their book with wisdom, and now we are reaping its fruits". The fruits of these principles in practice of law pave the way quickly, and some transformations have been made.

The Russian Pravda treats the General concept of crime as follows: a crime is believed to be that one which causes immediate damage to a person, his/her personality or his/her property. Hence, the term for the crime sounds like an "insult". So, the system of crimes is designed accordingly. The Russian Truth knows only two kinds of crimes: the crimes against persons and the ones – against property. There is neither state, nor job, or any other types of crime, which, of course, did not mean impunity for acts against the knyaz's power. In such cases the use of direct execution without trial was utilized.

According to the Russian Truth, the purpose of the punishment was to revenge. "The revenge inseparably contained both private and public elements of punishment. However, revenge was soon replaced by monetary penalties, the fines being divided into criminal ones in favor of the public authorities and private remuneration, namely: murder - vira in favor of the knayz and golovnichestvo – for the relatives of the victim; for other crimes - sale (knayz) and lessons (victim)" . Other punishments applied were aimed at the life, health, liberty and property of the offender in case of his/her property insolvency.