The problems of penal enforcement principles related to the statutory regulation of legal principles by the legislator and their understanding in the decisions of the Constitutional Court of the Russian Federation

The problem of legal principles in general and of penitentiary law in particular is one of the most controversial in jurisprudence. While principles are generally recognized as basic and universal categories that serve as a frame for the entire legal matter, the theory still shows no single approach either to the definition of «principle» or to the kinds of principles or their content. Another unsolved question is what principles are implied - the principles of law, of a branch of law, of legislation, of law enforcement activities, of statutory regulation or any other. The article is devoted to a question debated in penitentiary legislation: what legal principles should be subject of law entrenchment. In terms of this problem, the author analyses the current codifying and other federal laws and decisions of the Constitutional Court of the Russian Federation. Besides, an attempt is made to determine how certain is the Constitutional Court of the Russian Federation about the list of common law principles, as far as the latter should be equally implemented in all legal fields, including penitentiary law. The analysis of the provisions of the federal laws shows that legislative practice (sometimes even within a single act) detects lack of a unified approach to the essence of principles to be determined in law. Among them are the principles of legislation, the principles of responsibility, the principles ofjustice, etc. The analysis of decisions of the RF Constitutional Court also leads to the conclusion that there is no single approach to principles of which categories should be used. The definitions and regulations of the Russian Constitutional Court usually use the term of «principles of law», while the synonymous term of «principles of statutory regulation» is used less often. The article also provides examples of various types of common law principles reflected in the relevant acts of the Constitutional Court of the Russian Federation and in the dissenting opinions of some judges of the body for constitutional supervision. The analysis of specific materials leads to the conclusion that the Russian Constitutional Court has no single approach to the list of common law principles. Thus, the idea to treat many of the principles as having the common law status is highly disputable. To sum it all up, researchers, legislators as well as the highest judicial body for constitutional supervision leave these basic issues unresolved.

Keywords

Authors

References