506.1
Fundamental Paradoxes of the Theory and Practice of the Criminal Law
Understanding of the social justice
Social justice is a measure of public benefits from laws and other regulators based on an agreement which establish and maintain the life order of individuals and institutions. This order promotes the survival and development of the society, as well as provides integration and decent life of its members. The “decent life” is a compilation of all the benefits proclaiming in modern society: freedom, equality, social security, etc. Therefore the justice system should be aimed primarily at preventing crime, restoration of the rights and rehabilitation of the victims, and only then – on the prosecution, punishment and / or rehabilitation of criminals.
Economic pragmatism of the “social protection” concept
The concept of punishment stakes on the state control based on a quality management underlining efficiency and effectiveness. In this regard, in Western societies are widely discussing concepts of “safety” and “protection”. However, they are discussing without an analysis of what, in fact, should be protected. So “reliability” becomes symbolic notion and goes back to the “retribution”.
If we should still expect the socially significant effect of the penal system, it is necessary to decide from which perspective we should evaluate its quality. From producer’s perspective? But what exactly it produces: improvement of criminals, retribution, or citizens’ safety? From consumer’s perspective? But who is consumer: prisoner, society, State? From market’s perspective? But what are the objectives of the government regarding to prisoners, actual and potential victims, or crime policy? These estimates could differ, as well as the answers to the questions.
The elimination of these paradoxes could fundamentally change the concept and practice of the law in modern society.