The concept, features and criterion of a method of criminal law policy

Abstract

The author develops the concept of a method of criminal law policy and the criterion by which a phenomenon may be recognised as such a method. It is shown that the definitions available in Ukrainian doctrine - the enumerative one, according to which a method is a system of techniques for the practical implementation of policy, and the hierarchical one, according to which a method is a set of ways - name the genus and do not name the specific difference, and are therefore equally suitable for a method, for a means and for a procedure. Three defects of the existing apparatus are identified: the instability of the enumerative definition, the conflation of a method with a means, and the doctrinal status of the concept. A criterion of the feature itself is proposed: a feature belongs to the concept if it is general, that is, inherent in all phenomena that doctrine recognises as methods, necessary, that is, without it a phenomenon ceases to be a method, and substantive, that is, derived from the operation itself rather than from its comparison with another category. Against this criterion the features proposed in the literature are examined. It is substantiated that the generic feature is the belonging of a method to the genus of purposeful operations rather than of states, spheres or properties of policy, and that there are three specific features: its own ground and its own principles of implementation; its own object of influence - the normatively defined scope of the criminal, the punishable and criminal liability; and the normative rather than individual character of the result. It is demonstrated that the actor and the stage are not features of the concept, since the same method is carried out by different actors, and the actor is therefore a variable characteristic of a particular method, one that distinguishes methods from one another well and defines none of them. It is also shown that the enforceability of the result is a criterion of the effectiveness of a method rather than a feature of its concept. On this basis a definition of a method of criminal law policy is proposed and the limits of that definition are stated.