PROTECTION OF VALUES OR MANAGEMENT BY REPRESSION. ON THE FUNCTIONS OF CONTEMPORARY CRIMINAL LAW

Abstract

The study is devoted to an attempt to determine whether the analyses carried out at the level of the philosophy, theory and analysis and synthesis of criminal law, as well as the approaches presented in various criminological theories can be used in debates about the goals and functions of modern criminal law. The analyses carried out are based on the reconstruction of the current state of criminal law, dominated in many countries by penal populism. The coincidence of the repressiveness characteristic of the populist approach subordinated to the implementation of the concept of extreme deterrence, with the position of the legal elite as to the goals and functions of criminal law, illustrates the state of tensions and crises in which contemporary repressive law has found itself. The image of the public debate, characterized by the unambiguity of positions combined with the lack of perceptual openness to the views presented by the proponents of opposing approaches, provides a premise for the search for rational and verifiable arguments in disputes over the shape of criminal law. Given the limitations of the analysis and synthesis of criminal law in the sphere of disputes about values, an anthropological vision and a model of social structure make it reasonable to search for premises that order the debate about criminal law on other levels. In this regard, the study presents systemic approaches presented in the philosophy of criminal law combined with an attempt to justify that, in fact, complementary elements can be seen in them. Complementing the philosophical perspective is the plane of criminal law theory, on which one can also find elements that are part of the universal approach to repressive law. Adding to this picture of modern criminological theories, the study presents the thesis that modern criminal law serves multiple, sometimes opposing functions justified by reference to other assumptions and models of social structure. The multiple functions of modern criminal law make it unreasonable to refer to the dichotomy capturing alternatively the functions and goals of criminal law either as an instrument for protection of socially valuable values or as a tool of management by repression. The text seeks to justify the position that modern criminal law performs, in part, both functions indicated above. At the same time, there are opportunities to rationally limit the use of criminal law instrumentally as a tool of management by repression in the interest of power and certain social groups. The science of criminal law, encompassing the following planes: theoretical and philosophical, can be a plane that provides premises and arguments to help resolve contemporary dilemmas. In particular, it seems that the approaches presented in the science of criminal law and criminology are not so much of an opposing and radically competitive nature, but are in fact harmonizing, containing a number of complementary elements in a complex set of assumptions and claims that make up a holistic approach to the criminal law system.