Relationship between Judicial and Legislative Power in the Context of Criminal Policy

Abstract

Introduction: the article analyses contradictions between the legislature and courts arising in the process of development and implementation of criminal policy. The analysis is particularly focused on the causes, content, public presentation of these contradictions and the mechanism of their resolution. Purpose: to explain why, given the inevitability and objectivity of these contradictions, they are not publicly exposed and the parties involved in them avoid their public discussion. Methods: description, interpretation, classification, statistical analysis, documentary analysis based on the methodological principles of dialectics and the theoretical advances of political and sociological jurisprudence. Results: the article substantiates the presence of three groups of contradictions between the legislature and courts, which stem from the nature of these branches of government, the results of their activities and personal characteristics of political actors; it demonstrates the content of contradictions emerging in the process of creating, interpreting and applying criminal law; the study proves that the legislature and courts ‘politely evade’ public displaying of these contradictions and transfer their resolution from the political sphere to the sphere of law; it shows the role of constitutional justice bodies in resolving the contradictions; the articles offers an explanation of the current situation providing such reasons behind it as the courts’ perception of their role in society, the dominance of the legalist type of legal thinking and the firmly established type of decision-making by courts which is based on the conclusions of the formal theory. Conclusions: the evasion of courts and the legislature from the public resolution of contradictions in the field of shaping and implementation of criminal policy indicates two alternatives in the development of political design: either a crisis of the theory of separation of powers in the part that focuses on the contradictions between the branches of government and the formation of a new theoretical concept that relies on the synergy of actions of various public authorities; or, alternatively, that building an effective ‘vertical of power’ suppresses and destroys the doctrine of separation of powers. The article substantiates that any ‘polite evasion’ from public demonstration and resolution of contradictions between the legislature and courts has its limits, beyond which courts lose the quality of an independent and self-sufficient authority.