Lobanova L.V., Rozhnov A.P., Larionova L.N. Reflection of the Phenomenon of Freedom in Categories of Criminal Law

DOI: https://doi.org/10.15688/lp.jvolsu.2019.4.4

Lyubov V. Lobanova

Doctor of Sciences (Jurisprudence), Professor, Head of the Department of Criminal Law, Volgograd State University

Prosp. Universitetsky, 100, 400062 Volgograd, Russian Federation

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https://orcid.org/0000-0002-4686-124X

Alexey P. Rozhnov

Candidate of Sciences (Jurisprudence), Associate Professor, Department of Criminal Law, Volgograd State University

Prosp. Universitetsky, 100, 400062 Volgograd, Russian Federation

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https://orcid.org/0000-0001-5465-6978

Larisa N. Larionova

Candidate of Sciences (Jurisprudence), Associate Professor, Department of Criminal Law, Volgograd State University

Prosp. Universitetsky, 100, 400062 Volgograd, Russian Federation

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https://orcid.org/0000-0002-8243-1167


Abstract. Freedom is a natural-legal value that makes up the essence of human nature and therefore it is innate. The latter determines a research interest in how freedom in all the variety of its essential features (freedom, choice, freedom of will, boundaries of freedom, independence of an individual, etc.) manifests itself in various forms of human life, including such a segment of positive law as criminal law. Being a guarantee of personality development, allowing it to break out of the circle of diverse social connections determining its behavior, freedom, nevertheless, has certain limits of its activity. The establishment of these boundaries is necessary to ensure the freedom of each person so that the freedom of one does not become the non-freedom of the other. These boundaries are set by all positive law, including criminal law. Hence, ensuring personal freedom should be the goal of criminal law-making and criminalization of dangerous forms of human behavior. However, ensuring freedom and educating a person in the spirit of a conscious and responsible choice is not the same thing. Therefore, mixing or combining these goals in criminal law is contrary to the goals of legal regulation and testifies to the right of paternalism, incompatible with the purpose and possibilities of law in general and criminal law in particular. The realization of freedom outside is the act of a person, which is the result of a conscious choice of one of the many options for the behavior of the individual as a rational being. Consequently, a set of conscious behaviors themselves, as well as criminal ones which have not gone beyond the limits of its mental activity, i.e. not taken place in the act, under no circumstances can be declared criminal. Hence, the authors once again emphasize that the occurrence and revealing intent to commit a crime are indifferent to the criminal law and are outside its scope. Freedom as a choice embodied in a person's deed is ensured by the establishment of norms in criminal law aimed at protecting external freedom. The latter, through criminal law, legally guarantees an individual the possibility of unimpeded movement, choice of place of residence, place of stay, acting in this capacity as a prerequisite for the realization of freedom in its anthropological dimension. But human freedom manifests itself most vividly as a sign of guilt, which is an indispensable sign of any corpus delicti – the only basis for criminal liability and, therefore, the most serious personality restrictions. It should be noted that the principle of guilt (liability for guilt) is enshrined in the criminal law (Article 5) among the fundamental principles of the industry. Subject to Art. 5 of the Criminal Code of the Russian Federation criminal liability is possible only if there is guilt as a conscious-volitional attitude of a person to the deed and its consequences.

Key words: freedom, freedom of choice, free will, criminal law, socially dangerous behavior, criminalization, the fault.

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Reflection of the Phenomenon of Freedom in Categories of Criminal Law by Lobanova L.V., Rozhnov A.P., Larionova L.N. is licensed under a Creative Commons Attribution 4.0 International License.

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