Theories of Punishment and Reform of Criminal Law (Reforms as a Change of Mentality)
| Author | Jaan Sootak |
| Pages | 68-78 |
Jaan Sootak
Theories of Punishment and Reform of Criminal Law (Reforms as a Change of Mentality)
It is a commonly accepted concept that theories of punishment represent the basis of legitimation for the state's criminal punishment procedures. Different theories of punishment - absolute, relative, and mixed theories - explain in different legal philosophical and legal theoretical ways the nature of punishment and, via the objectives of punishment, the goals of the state's interference in criminal law. 1 The theories of punishment and the objectives of punishment formulated on their basis have at all times been the subject matter of scientific debates, discussions in comparative law included. 2 Besides, the theoretical bases and preferences of punishment recognised by a particular state condition the definition of the grounds in the Criminal Act on which penalties are imposed and ultimately the state's policies and practices of punishment.
In this article the author treats the issue of punishment theories against the background of Estonian criminal law reform. Hopefully, the issue of the exact theoretical basis of punishment which should underlie the development of our criminal law as a whole - an issue that is of paramount importance to Estonia as it continues to undergo reforms - and the law of sanctions and the bases of imposing penalties will attract the attention of scientific communities.
Estonian legal reform as a whole and, consequently the reform of Estonian criminal law aspire to disembark the totalitarian Soviet law and mould a European legal system that matches the current level of jurisprudence. 3 The matter, however, does not just involve the dogmatic review of certain problems but also concerns the legal philosophical and legal political bases of the reform of criminal law. Thus, the reform makes the jurisprudence and legislators face several tasks which can be solved only provided that besides the availability of answers to legal theoretical and legal philosophical questions the legal mentality will also change. 4
The problem is aggravated and interest increased by the fact that the current Estonian criminal law, derived from the Soviet criminal law, ignores or offers just a moderate treatment of the issue of punishment theories. Consequently, in the course of the reform we must understand which thought models and legislative solutions stem from a totalitarian state's law, which are simply outdated, which should be transferred to the new legal system for the sake of nurturing traditions and stability of the legal system, which should be taken over from other countries, and which we should devise ourselves.
The problem of punishment theories in view of the objective of a punishment is per se one of the oldest legal philosophical problems, on top of it being the focal one. Historically, the idea behind the punishment can be reduced - albeit in retrospective - to the dilemma of retribution or prevention, i.e. to the question whether the punishment is a vehicle of visiting fitting retribution upon the offender for what they have committed, or whether the public authority in which the right to exercise punishment is vested should be proactive and try avoiding similar offences in the future? The definition of the antimony of punishment theories can with a natural limitation be even traced back to Seneca who, using Plato as a middleman, cited what Protagoras was believed to have said: "...nemo prudens punit, quia peccatum est, sed ne peccatur...". 5
The development of the problem of punishment theories can be observed throughout the history of criminal law, both during the Middle Ages and during the Enlightenment, both in the natural law codification and the criminal law philosophy of Italian positivist rebellion, and in the disagreements of different schools at the turn of the 19th and 20th centuries. What interests us now, however, is the problem of when the theories of punishment ceased to just justify the objectives of punishment and started occupying a much more important position within the system of criminal law - they grew into the legitimation basis of criminal law. 6
Obviously, criminal law needs to be legitimated only at a certain level of development, primarily at the point when criminal law intervention collides with the principle of human dignity. This is the position where criminal law intervention must justify itself in a state ruled by law. It is clear that an esoterically operating criminal law built on the absolute theory of punishment does not face such problems even though it may recognise the guarantees provided to an offender in a state ruled by law.
In this respect, the problem of legitimacy of criminal law arose acutely during the disagreement of the schools as it was then that the issue of whether a punishment should have objectives and if yes, which, became the subject of disputes. 7
To this date the theories of punishment with a sociological edge reproach the theory of absolute punishment because of its esotericism and evasiveness of the problems facing society. For instance, W. Hassemer believes that criminal law should look beyond its goals because there are phenomena outside the criminal law systems which function just like criminal law and which also determine whether the goals of criminal law have been attained. Therefore, criminal law must redefine itself within the general. 8
This issue is important in the context of Estonian criminal law reform for the very reason that as of now we have to redefine criminal law. Currently the priority is not which punishment theory to choose or which theoretical standpoints to prefer. We must go farther than that - both the jurist and the legislator need to wake up to the problem of legitimation of criminal law as a whole. As can be seen below, it requires a substantial change in the legal consciousness of Estonian jurists as far as their mentality is concerned.
Below I will make an attempt to demonstrate that in the course of Estonian criminal law reform, the concepts of the legitimacy of criminal law and punishment theories should be introduced to the jurisprudence and legal awareness. The issue is not so much in just introducing the concepts to law or dogmatics. Such an introduction of concepts does imply the redefinition of criminal law in the minds of society. The problem is further complicated by the fact that although the Soviet criminal law and criminal jurisprudence recognised the concept and goals of punishment, they did not recognise the concept of punishment theory. The problems of the justification of punishment and the legitimacy of criminal law were just as unfamiliar.
There is no doubt that the criminal laws of Germany and France substantially influenced the criminal laws of Tsarist Russia and the first Republic of Estonia. 9 However, the uniqueness of Russian criminal law should also be taken into account; for instance one of the leading criminal jurists of Russia, N. Tagantsev, based his treatment of the topic purely on normativist ideas.
The concept of crime was explicated by Tagantsev to be a legal relationship between an individual and society. Crime is dangerous because it creates relationships between the offender and society and between the offender and injured party that differ from the legal order. Crime and punishment as legal phenomena represent the object of criminal law. Thus, crime is directed against a legal norm. 10 But Tagantsev does not analyse the bases of punitive power in terms of criminal law, which were at that time acknowledged in German criminal law as a substantial abstraction. 11 Tagantsev treats the punitive power of the State only within the framework of the theory of punishment although he did so with extreme thoroughness. He differentiates between the bases of the State's penal law (karatelnoye pravo) and the purport and goals of the State's punitive actions. Tagantsev treats the theory of moral and spiritual characteristics of human nature, the theory of divine origin, the theory of contract, the idea of law, etc. as the bases of the punitive power. 12 Tagantsev views material retribution (Kant), dialectic retribution (Hegel), utilitarianism (Bentham), prevention (Grolman), protection of society (Liszt), etc. as the goals of the state's punitive actions. 13
Russian criminal law as reflected in the work of its leading scholar did not contemplate punishment theories or the general concepts of punishment objectives as abstractions. This also explains why the 1903 Russian New Punitive Code and the 1929 Republic of Estonia Criminal Code modelled on it lacked provisions on the bases of imposing penalties or the objectives of punishment.
The theory of punishment and the objectives of punishment, and the issue of legitimation of criminal law did not occupy a significant place in the works of Estonian criminal law jurists after the country achieved independence in 1918. H. Kadari speaks about punishment theories as "legal political doctrines of punishment" in the part of his textbook dedicated to the punishment doctrine. 14 K. Saarmann treated "theories of punitive law" in conjunction with the concept of criminal law but groups them with indeterminism and determinism as "trends in the science of criminal...
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