The Concept and the System of the Subjects of Criminal-Law Policy

Abstract

The article formulates a doctrinal concept of the subject of criminal-law policy and substantiates the criteria for constructing the system of such subjects. It is shown that the enumerative approach prevailing in doctrine, under which the subject is revealed through a list of bodies, is theoretically fruitless, since any such list inevitably becomes outdated, and the concept becomes outdated together with it. Instead, it is proposed to define the subject through a set of generic features - the authority-competence, functional and institutional ones - supplemented by purposefulness and the value-and-interest nature of the bearer of policy. It is substantiated that the terminological opposition “subject versus actor” is illusory: both categories describe the same phenomenon at different levels of abstraction, and what is constructive is the distinction between the core of authoritative subjects and the periphery of non-authoritative actors of influence. It is proposed to build the system of subjects according to four criteria - the character of participation, the legal nature, the territorial level and the scope of powers - which are not mutually exclusive, so that the position of a subject is determined by their totality. It is established that legal scholarship is not a subject of policy formation in the authoritative sense, yet it is an actor of influence possessing a cognitive and ideological resource; it is distinguished from the institutionalised drafting working group, which meets the criterion of a collective subject and belongs to the core of the subjects of formation. It is argued that the subjects of implementation are not passive executors, since the discretionary nature of their powers gives them a reverse influence on the content of policy, while the system of subjects itself is open, multi-level and dynamic.