The Subjects of the Formation of Criminal-Law Policy

Abstract

The article substantiates the functional model of subjects of criminal law policy formation. It is shown that the established identification of policy formation with lawmaking, and the subject of formation with the legislator, is based on the false assumption of the indivisibility of the law-making act. Instead, it is proposed to distinguish three functionally distinct roles within the formation: normative draft (development of the content of the policy), legitimizing (giving this content the legal form of a law) and framework (setting external boundaries and guidelines). It is established that the Verkhovna Rada of Ukraine monopolizes only the legitimizing role, while the content of the criminal law was historically developed not by parliament, but by a specially formed collective developer. The subjectivity of, in particular, the Working Group on the Development of Criminal Law as an independent doctrinal and normative subject is substantiated, which, not having the right of legislative initiative, actually produces the content of future policy, while the subject of the initiative legitimizes this content. It is noted that the dysfunctions of formation - the chaotic novelization of the criminal law and the unsystematic nature of military lawmaking - are a consequence of the legislator’s overestimation of the normative role, for which he does not have the appropriate procedural and professional resources; it is indicative that the mechanisms of self-restraint of the legislator are proposed by the drafter. It is argued that science and supranational institutions perform a framework role, exercising influence not directly, but through the normative subject.