Projection of psychological constructs on the interpretation of free will in criminal law

Modern Russian doctrine of the criminal law recognizes free will as one of the basic criminal law beginning, seeing it as the philosophical basis of criminal responsibility. Terminological postulates taken from psychology, such as consciousness, will, given the opportunity to define free will as an optional opportunity to commit acts which suggest hypothetical (non-)prosecution. A position is proved that consciousness coincides with its psychological content in the criminal law sense, but will in criminal law is constructed using the concepts of desire, assumptions, etc., and is different from the concept of will in psychology. The term "consciousness" from the positions of law is understood mainly in the context of the doctrine about the subjective side of the offence. The concept of will is not synonymous with consciousness, but not opposed to it, because the latter is responsible for the moral assessment of the act. A volitional act is committed on the basis of consciousness, but is finally formed in connection with the motivational sphere of a person. A conflict of motives leads the individual to a particular decision and, depending on what motive is stronger, there is a choice of behavior, which may be of lawful or unlawful character. The freedom of choice presupposes the existence of several ways of behavior. The presence of will can be defined through the prism of motives and goals towards which the subject tends. At the same time to confirm the volitional act of the individual in reality there should be several options of potential behavior and a person can make a conscious choice. In unwary crimes there is no awareness of the criminal nature of action. However, due to the "physical" nature of the wrongfulness of the act, a person shall be criminally responsible having a conscious choice of behaviors. The mechanism of free will is a conscious selection of behavior from several available. Criminal law attaches no importance to the motivation of an act as such or its social assessment, the only important thing is the presence or absence of unfree will. In some cases, individual motives are important for criminalization, however, this issue is beyond the current study because it requires an independent research. As a conclusion we can suggest the following construct of free will in its criminal legal meaning: it is an autonomous decision of a person to find an available (including both action and inaction) option of acting and implementation of such an option.

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