Delimiting the methods of criminal law policy from adjacent conceptual series

Abstract

The author distinguishes a method of criminal law policy from the phenomena that bear the same name in the literature: techniques of the scholarly cognition of law, methods of legal regulation, techniques that support a legislative decision, and techniques of public administration. It is shown that sameness of name is not sameness of subject matter, and that the source of the overlap lies already in the dictionary meaning of the term, which describes a research technique and a technique of action alike. It is established that external marks - the title of a work, the presence of a section on methods, the very use of the word «method» - are unsuitable for delimitation, since the series is determined by the subject matter of the text rather than by its heading; instead it is proposed to distinguish a doctrine of techniques from a working order of actions by whether it is meaningful to ask who devised that order and when it was introduced. It is demonstrated that a technique of cognition differs from a method of policy in its object and in the character of its result: its object is the idea of law, and it leaves the normative material itself unchanged. It is shown that a method of branch regulation describes a law already made rather than an operation upon it, and takes effect in respect of a particular person in particular relations, and is therefore not a competitor of a method of policy but the second link of a single sequence. It is substantiated that modelling, forecasting, expert assessment and monitoring stand before and after the operation upon the law, preparing a decision or assessing its consequences, while an administrative technique differs in its addressee and its material, being directed at the activity of subordinate bodies. It is concluded that the generic definition of a method and the requirement of having its own principles of implementation are common to all these series, and that a method of criminal law policy is distinguished by two features alone - the object of influence and the normative character of the result.