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the offence theory in works of representatives of domestic jurisprudence of XIX century (A.P.Kunitsyn, N.M.Korkunov, V.S.Solovev)

The end of XVIII century in history of the Russian state has been marked by accurate comprehension by society of presence of the conflict between operating criminal legislation and the advanced public consciousness.

The most known thinkers of that period showed the big interest to works of domestic and West European lawyers, translations into Russian of products of I.Bentama, SH.L.Montesquieu, C.Bekkaria, etc. All these circumstances were carried out testify to a wide circulation of interest to legal problems in Russia. The exclusive saturation historical and obshchestvennoyopoliticheskimi events presses mentally to divide this chronological period into two stages - the first and second half. On
To opinion of researchers, first half XIX centuries became the critical period in development of domestic jurisprudence. This conclusion is dictated by what at this time in our country process of formation of the Russian jurisprudence has come to the end, begun with the middle of XVIII century [68]. Within the limits of this chronological period it will be expedient to address to ideas of the outstanding Russian lawyer, professor Alexander Petrovicha Kunitsyn (1783 - 1840). Before to speak about its views on an offence, it is necessary to understand its sights at the right in a general view.

The outstanding Russian jurist has selected scientific basis of an explanation of process of formation of the right the checked up hypothesis of state of nature, that quite corresponded to its ideological orientation. In its opinion, originally people wandered on woods, receiving livelihood thanks to fish and animal catching. In this condition they needed to save up only own life, and they did not think at all of a civil society. Little by little people start to get the constant property that generates aspiration it to keep and increase. However to make it alone it is impossible also people start to be consolidated in families. As a result of it arises pastusheskoe a society which is created with a view of maintenance of safety personal and real rights [69]. Thus, right occurrence speaks realities of life of a society which are defined by action of objective processes of a life of people. Therefore it is necessary to agree with B.S. Osherovichem which denies subjectivistic understanding of the right of A.P.Kunitsyn [70]. It is necessary to note interrelation of the right with freedom also.

Researchers of state-legal views of A.P.Kunitsyn focus attention that in its concept freedom
It is considered as a necessary condition of existence it is right [71]. According to the apologist of the theory of the natural death, the person is free only in the event that it has possibility to operate the behaviour irrespective of external impressions. The person conducted by passions contrary to a will of reason, is represented to it the slave to these passions [72]. As we see, presence or absence of a condition of freedom directly define presence or absence of a legal status of the person. Arguing on the right as a whole, the scientist approaches to its kinds among which especially marks human rights - a phenomenon having enormous value to this day.

Investigating this universal legal institution, A.P.Kunitsyn differentiated human rights on congenital or initial and derivative. He considered human rights on, i.e.

moral possibility to have the major initial right by itself or own person. In a context of this major congenital right the right to make act is especially allocated and to leave them on own arbitrariness and the discretion [73]. Creation of obstacles at realisation of this right, in its opinion, would break freedom of the individual. Possibility freely to make acts it is shown already at subconscious level of the individual. The historian of thought has been convinced, that the sensual human nature is shown that he aspires to make kind acts, and not priemlet all that finds malicious. This law is come under by all desires, no less than preference bolshego good smaller and smaller harm bolshemu [74]. At the same time estestvennoyopravovoj it was obvious the theory to the outstanding representative, that the person can be mistaken and esteem true kindly false and false the true. Analyzing the above-stated postulates, it is possible to draw a conclusion, that the first restriction of the right to make
Acts roots in the human nature to which can commensurate the activity with good requirements.

The scientist deduces the second restriction from the fact of a finding of the individual in this or that generality of people. In its opinion, the person, being in a lonely condition, is guided by one only natural freedom, i.e. makes only those acts which give to it pleasure. In a condition of a hostel with beings similar to it can make only that does not cause harm to another as if it in the purposes began to break the rights of other people would give their a cause to arrive with it in the same way [75]. Hence, the finding of the person in a generality similar forces it to adapt the acts for interests of society with a view of observance of the rights of associates. Obshchepriznanno, that our freedom comes to an end there where the right of other person begins. This conclusion for today has got axiomatic character. Thus, the thinker has come to conclusion, that freedom of the person is limited to freedom of other people, quantity of the rights belonging to it, and also the physical and moral forces necessary for realisation is right [76]. At the same time it does not absolutise these restrictions and does not consider as their panacea from all public troubles that would exclude possibility of their non-observance.

The outstanding jurist believed, that the actions of the person directed on associates are dictated by benevolent or spiteful motives or at all do not assume neither that nor other substantiation [77]. It is possible to assume, that speech here goes about a prototype of various forms of display lawful and unlawful conduct. With reference to the last the scientist has formulated a number of conclusions, which further
Have found the acknowledgement, both in general-theoretical, and in branch researches.

A.P.Kunitsyn considered the acts corresponding to the law as right, and inappropriate - wrong. Any act mismatches the law if it breaks the rights of others. The researcher saw breach of law in cases when someone will prevent in the illegal image its realisation or at all will make its impossible. It called any infringement of another's right obidoju [78]. The word insult in its doctrine is understood as angrily, caused to a reasonable being from another, to it similar. Use by scientist of the term "insult" at first sight addresses to the right of Ancient Russia in which frameworks in a phenomenon of illegal act the private-law beginnings prevailed, as has caused steady application of this term. However the apologist of the theory

The natural death, referring to some norms of the Russian Truth, only

79

Casually mentions tradition of the gibbet law existing in our right [79]. Its attention in this question has been given ancient legal proceedings, i.e. especially remedial aspects.

Analyzing this point of view, it is possible to notice, that the historian of the right as offence signs allocated illegality (discrepancy to the law) and fault (any breach of law). An act sign, i.e. act or omission unequivocally to deduce from the resulted citation it is impossible. However, allocating differences of the right from morals, he in particular noticed, that the right regulate our external behaviour and demands its conformity to the instructions. The morals arise in us and demand, that our thoughts corresponded to its instructions [80]. The outstanding jurist has come to conclusion, that internal actions on

The being cannot break the rights of other people. Here it carried ability to think and wish. External actions can contradict the rights of other people by the nature or on coincidence of circumstances [81]. Thus, it is possible to approve confidently, that the act sign in its doctrine, at least, was meant as the integral attribute of an offence.

Is better to understand degree of a readiness of sights of A.P.Kunitsyn it is necessary to compare them with ideas of its contemporaries - representatives of a science of criminal law who always set the fashion researches of illegal acts. O.Goregljad in the first textbook on criminal law under a crime understood illegal, deliberate and besides harmful to the state or private people act [82]. As we see, in this approach have found the reflexion signs of illegality, fault and harm. The prototype of object of criminal action - public and private interests is besides, traced. In first half XIX centuries wider understanding of concept of a crime has been formulated also.

G.Solntsev believed, that it is a question of the external, free act forbidden by positive laws, is mediocre or directly breaking safety and well-being of the state or citizens and involving lawful punishment for the criminal [83]. Thus, the concept of illegal act is supplemented with a punishability sign. At first sight it seems, that the resulted definitions of concept of a crime are more perfect, than A.P.Kunitsyna's point of view. However the outstanding representative of the is natural-legal theory has formulated a number of classifications of insults which cover the signs of the offence which have been not reflected by it in the concept.

First of all, it divides insults on quality of the rights on which the offender encroaches. In this case are allocated essential insult when the initial rights and casual when derivative rights [84] are exposed to infringement are broken. In this classification the prototype of understanding of degree of the social danger is pawned. So, for example, breach of law of the person to make acts and to leave them at own discretion is especially heavy act. In turn breach of law of the property, got, for example, under the gift contract, is considered as less heavy.

The second classification was based on criterion of quantity of the persons which rights are broken. The scientist allocated the general insult (infringement of the rights belonging to all members of a society), private insult (infringement of the rights belonging to many persons or estate) and especial insult (the breach of law, belonging to one person) [85]. It is necessary to compare this gradation to kinds of the crimes allocated with a science of criminal law in first half XIX centuries.

O.Goregljad allocated crimes criminal, police, public and private. Criminal offences came under to the criminal court and strict punishment or the fine. Policemen represented small offences or infringements established blagochinija which were exposed to police court and easy corrective punishment, or without the court, one monetary peni. Public broke the rights of a sovereign and the state, and as public silence and calmness. At last the private encroached on personal or real rights of the citizen [86]. G.Solntsev allocated only criminal and
Police crimes, putting in them precisely same maintenance [87]. The classification offered by A.P.Kunitsyn Is represented, that, concedes nothing to progressive ideas of representatives of a science of criminal law and even surpasses them in view of absence of excessive crushing of acts on kinds. The general insult covers criminal, police and public offences. The private insult is absolutely fairly allocated.

At last the outstanding jurist divides insults depending on quality of act by which the right is broken. The positive insult when in view of act fulfilment the right of another and negative when by means of act omittance there is a breach of law [88] is broken is allocated. As we see, it is a question of a prototype of the acts made by action and inactivity. This postulate will develop further jurisprudence. The historian of the right did not limit understanding of illegal act only to an outer side of its display and has formulated a prototype of forms of fault of the offender.

In its opinion, the insult can be caused as at will of the person who have broken the right, and without its desire on one only to confluence of action with an illegal consequence [89]. As we see, it is a question of the most general understanding of intention and imprudence without their gradation on kinds. In A.P.Kunitsyn's this postulate has surpassed achievements of representatives of a science of criminal law. O.Goregljad considered, that unintentional acts are not charged at all [90]. G.Solntsev as has not formulated accurate understanding of the unintentional form of fault, reducing it only to the casual
To the acts releasing from punishment [91]. Moreover, the outstanding representative of the is natural-legal theory has tried to develop these ideas.

A.P.Kunitsyn absolutely fairly considered, that in case of causing of insult at will of the offender it is necessary to discriminate, whether in a full measure the person realised the behaviour. In its opinion, the insult can be made though and at will of guilty, but the extraneous reasons weakening influence of reason on will can influence its determination. In this case are available in view of strong feelings and the impulses initiated by impressions of external things or force of imagination [92]. Possibly, speech here goes about a prototype of state of sanity of the offender. It not simply comes to this concept, but also discriminates its kinds which directly define degree of imputation of fault to the offender.

If psychological compulsion so strongly operated on reason, that the person could come to self-oblivion, and only this circumstance became the reason of illegal act it does not come under to imputation. At the same time, A.P.Kunitsyn specifies, that strong feelings and impulses can be initiated both at will of the person, and against it. In the first case act is charged, in the second - is not present [93]. Thus, the historian of the right excludes fault for an offence which fulfilment has been caused by the strong mental disturbance of the person which have arisen against its will. Certainly, yet differences of a condition of affect from state of insanity were not allocated, but the progressive component here is available. The concept and kinds of the careless form of fault Further reveal.

If the person which completely supervises the behaviour, makes the act outraging without its intention it is called as rashness. Breach of law in this case is called
Fault [94]. The outstanding jurist considered this thesis as an exception of the general rule, according to which person it is peculiar to make each act intentionally, i.e. is deliberate. The concept of rashness reveals by means of its gradation on ignorance and error kinds.

In the first case it is a question of a lack of data, and of the second - about the falsehood [95]. Both these rashness kinds can be both surmountable, and insuperable. If the guilty person has shown necessary diligence for data acquisition, from a lack or which imperfection there was a breach of law ignorance and error are insuperable. If diligence about acquisition of the appropriate right has not been shown, ignorance and error are surmountable. Thus, in this case it is a question of negligence. Insuperable ignorance and error exclude any imputation. Surmountable imputation and error do not exclude imputation, however it can be big or smaller depending on degree of possibility of its overcoming the originator and the diligence shown by it [96]. As we see, though A.P.Kunitsyna's sights have not been so developed as modern, nevertheless, the careless form of fault has been formulated by it more progressively, than representatives of a science of criminal law. The prototype of the circumstances excluding criminality of act is pawned also.

In opinion, the outstanding representative of the is natural-legal theory, the right of one person to make those or other acts assumes presence of a duty surrounding not to interfere with it in it. The harm which was a consequence of lawful act of other person, does not grant to the victim of the right to reciprocal actions [97]. This progressive position has not been formulated by a criminal law science. O.Goregljad, recognising, that
The act not forbidden by the law does not come under to punishment, nevertheless, noticed, that this act at the same time should not harm the state or private persons. Otherwise the person is not released from proportional responsibility [98]. Thus, representation about lawful injury as the circumstance releasing from legal responsibility, has originally been put in pawn within the limits of the general theory of law. Moreover, A.P.Kunitsyn has formulated accurate enough prototype of the justifiable defence.

Recognising for each person the right to life, the outstanding jurist allocated at the same time and the right to protect it from attacks of other people. In its opinion if the person cannot protect the life differently as by means of death causing unfairly attacked the reason orders it this right. In this case the life of the innocent contradicts a life guilty, and someone from them by all means should lose it. The reason law recognises as fair preservation of a life innocent [99]. Hence, a unique limit of the justifiable defence harmony, i.e. impossibility to protect the life as a different way except as causing of death to an aggressor acts. Oposredovanno it is possible to deduce from this restriction and the requirement of its timeliness.

Thus, A.P.Kunitsyn has more accurately differentiated all legal behaviour on lawful and wrongful, has formulated signs of act, illegality and fault, classified offences on kinds and has essentially developed representations about the circumstances excluding criminality of act. Modern researcher A.S.Kunitsyn sees value of sights of the outstanding namesake that they have played the important role in preparation of public opinion of our people for comprehension of necessity for progressive state transformations and struggle for the statement
The sacred rights and freedom of each person [100]. With this position, certainly, it is necessary to agree. Development of teoretiko-legal views on an offence has proceeded in second half XIX centuries in which frameworks it is necessary to note sights of the Russian scientist-lawyer, philosopher of the right, professor, expert on state and Nikolay Mihajlovicha Korkunova's to international law (1853 - 1904). First of all, it is necessary to mention its interpretation of the right which is rather actual in the light of studying of a phenomenon of an offence.

The concept of the right is deduced from sphere of public relations. The philosopher of the right considered, that in a life of any society organically co-exist both individualism, and public interest. In its opinion, it is originally right served individual interests, i.e. allowed the person not to submit to requirements of the public environment, and to isolate and preserve own. The owner [101] is a question of freedom sphere, where everyone to itself. However in due course individualism begins vytisnjatsja the enemies, i.e. supporters of a primacy of the general over the private. The Scientist-lawyer absolutely fairly does not absolutise any of these beginnings in the right nature. Full negation of all individual would make a public life simply impossible. At the same time development of public culture presses for the increasing and bolshego rallyings of individuals. Being based on this conclusion, the outstanding jurist deduces the right nature as obligatory rule of behaviour. In its opinion, right occurrence assumes existence of the several interests resisting each other and each other limiting. The right acts as means of differentiation of these interests [102]. Hence, the right unlike laws
The nature has subjective character, i.e. it is created by will and consciousness of people and accordingly acts as the phenomenon of a psychological order, differentiating interests facing among themselves [103]. It is necessary to agree With this point of view, as obligatory rules of behaviour are really created by people in the course of their socio-historical practice. It is interesting to notice, that N.M.Korkunov considered jurisprudence and the general doctrine about the right as abstract sciences, proving the position that their problem consists in construction of models of everyday relations and concepts-models [104]. As to the definition of the right it is formulated widely enough.

The philosopher of the right believed, that it is necessary to understand a rule, norm of human activity which is carried out by means of conscious will of the person that is why supposes infringements [105] as the right. The Scientific - lawyer recognised this definition too wide as under it morals and expediency rules approach also. At the same time it has very accurately defined the nature of legal rules and has realised inadmissibility of their non-observance, i.e. has in detail analysed sanctions.

The nature of legal rules the outstanding jurist saw that they represent the commands turned to a conscious will of the person. At the same time they can not be observed by it and so circumstances require in special obespechitelnyh measures of their valid execution [106]. The researcher believed, that in case their observance will not be provided, they will be the dead letter. Compulsion means to execution of legal rules he names sanctions. The legal nature of this element of the rule of law further reveals.

Each infringement of the legal rule causes new collision of inconsistent interests, i.e. on the one hand there is an interest of the victim from an offence to receive compensation of the harm caused to it. At the same time the offender does not become deprived of civil rights whereas the right protects also its interests [107]. Collision of these interests, being expressed by the modern language, acts pravoobrazujushchim as the fact as it leads to an establishment of the corresponding legal rule defining restriction of realisation of interests of the offender in interests of the victim. The Scientist-lawyer is not limited to this undoubtedly thorough postulate and tries to get deep into a question.

Recognising, that offences are made for the sake of the known purposes to which achievement of the person induce the interests constrained by commands of legal rules, the philosopher of the right formulates the means providing them valid execution. It is a question of making actions, their breaking, not achieving the object [108]. These are so-called «leges perfecte». In this case it closely approaches to comprehension of that in some cases consequences of infringement of many legal rules consist in a recognition of actions breaking them the insignificant. As an example the researcher results real estate sale under the house certificate which admits insignificant, not having any value. In this case the manor is considered not sold, and bought - not got on it the property rights. As we see, the sanction in this case consists only that the transaction admits void. Any personal or property deprivations for the parties does not come. The outstanding jurist considered this kind of sanctions made in view of their affinity to nature laws. In its opinion as there is no the phenomenon contradicting laws of the nature, and the action breaking
The perfect law is considered not совершившимся109. Further the gradation of invalidity of action on kinds is spent, i.e. its legal nature reveals.

The scientist-lawyer allocates negligibility (nullitas) and oporochivaemost (rescissilitas) as kinds недействительности110. It is possible to recognise this gradation as an accurate prototype of modern civil-law designs of negligibility and voidability. In the first case it is a question of invalidity which comes only in force pravonarushajushchego character of action. So already mentioned verbal sale of a manor to recognise insignificant even in case of desire its both counterparts. This example actual and for today [109]. The second kind is understood by the jurist as invalidity which can come only owing to the requirement of the interested person. So, for example, the transaction concluded under the influence of threats (metus) admits void only under the statement of the interested person. Absolute and relative negligibility is allocated also.

In the first case it is postulated, that act of the offender is considered certainly nonexistent. All is a question of the same verbal sale of the real estate. Relative negligibility consists only in some special consequences of the transaction. For example, the bill which has been given out by the woman without the consent of the husband, excludes presence in it of bill force, but does not deprive of its value of the extra obligation [110]. The considered cases are devoted suppression of the fact of fulfilment of void transactions. At the same time it was obvious to the philosopher of the right, that illegal act not always probably to warn and there are situations when the offence is already made and corresponding illegal consequences have come.

109

110

In the same place.

In the same place. With. 173.

111

The outstanding jurist recognised, that in this case one only recognitions of action of the offender insignificant insufficiently. It is necessary to fill also the former condition changed by an offence, i.e. to restore the broken right [111]. This procedure is made by authorities and can consist as in the termination of a wrongful condition by force (for example, otobranie things of wrongful possession), and in fulfilment of the imposed duty at the expense of guilty (for example, roadway correction). This conclusion has led to its comprehension of that in practice not always probably to restore the right trampled by the offender.

According to the scientist-lawyer, sometimes act of the offender already comprises realisation of that interest for the sake of which it was made (for example, rape) or its actual consequences neustranimy, the trampled right is non-recoverable (for example, murder) [112]. In such situation the recognition of act guilty insignificant is not enough. Therefore unprofitable consequences are applied to the malefactor still. These are so-called «leges plus quam perfectae». In this case it is applied as civil collecting (poena private), and the punishment imposed by the government in public interest. At the same time, it is obvious, that injuriousness of an offence at all is not limited to material consequences.

The philosopher of the right noticed, that simultaneous application of these collectings does not eliminate nevoznagradimogo the harm consisting in insult which is tested by the victim from an offence and blasting of authority of the law [113]. It is obvious, that in this case takes place to be moral harm. Certainly, degree such nevoznagradimogo harm izmenchiva also depends from
Changeable conditions of life. Thus application of the punishment, imposed the government, does not eliminate neither negligibility recognitions pravonarushajushchego action, nor restoration of the broken right. So, in case of forgery fulfilment the guilty is punished, and the document constituted by him admits insignificant. In a case of theft besides application to the thief of punishment the stolen things come back to the proprietor.

At the same time situations when the recognition of action of the offender attracts with the insignificant unprofitable consequences for the third parties [114] are possible. As an example annulment of marriage as a situation which affects children who in this case appear illegitimate is resulted. With a view of bar of claim by lapse of time of such phenomena in practice the scientist considers, that marriage can be nullified only in case of law material breaches. Less important attract only punishments guilty, and marriage admits valid. In the same way in case of a timely neopayment of the civil transaction the stamp duty the guilty come under to the penalty, but the transaction is valid. Norms which attract unprofitable consequences for the offender, but keep for pravonarushajushchim action a validity, call «leges minus quam perfectae». As we see, the outstanding jurist focuses the attention to civil-law torts and only casually speaks about crimes and administrative violations.

Despite detailed disclosing of sanctions of rules of law, the philosopher of the right at all does not absolutise this element. In its opinion, criminal reprisal, both in material, and in the moral plan the expensive manages to a society, not eliminating thus perfect offence, not restoring the violated right and not compensating the harm caused by the criminal. It is necessary to resort to retaliatory measures only in
Cases when other ways of counteraction to an offence are absent or they mismatch weight of an illegal encroachment [115]. Really, it is impossible to apply needlessly threat by punishment, considering criminal justice as panacea against all possible offences. Application of criminal reprisal is necessary means observance of due economy.

Moreover, the outstanding jurist noticed, that there are the norms which not so do not have any sanctions. It is a question about «leges imperfectae» [116]. In its opinion, these norms have the greatest distribution in the public law as they define the rights of authorities. The device of body of public authority provides in advance legitimacy of will expressed to it. The philosopher of the right believed, that maintenance of the valid observance of the decrees ordering especially rules of behaviour represents a question of the internal organisation of management and execution of an office debt [117]. Concerning conviction of the scientist-lawyer about prevalence of norms without sanctions in public law branches it is necessary some specifications.

The matter is that norms of such public branches of law as criminal, administrative and tax abound with punitive sanctions. If to look at constitutional law branch, there, certainly, sanctions much less. However even there impeachment of the higher officials by means of their discharge from posts is possible. Thus, this position has not sustained check by time. It is not necessary to think, that the outstanding jurist considered the conclusion as an axiom. On the contrary, it comes to understanding of necessity and norms of the public law to give sanctions, considering the right of the administrative claim recognising void illegal of orders
Administrations. In its opinion, in this case the considerable part of norms of the public law turns from imperfect in perfect [118]. And still this progressive line is spent not up to the end. The philosopher of the right has been convinced, that in public law branches there are norms which will never contain sanctions.

It is a question of the Supreme power, which, in its opinion as to anybody on the earth unmastered can conclude a guarantee of execution of the duties assigned to it only in itself, in the moral advantage [119]. However and this position has appeared not eternal. Today the legislation of the majority of the civilised states of the modern world recognises possibility of impeachment of the higher officials. It is simple to notice, that the scientist has limited sphere of the public law only state and partly to administrative law. This circumstance quite speaks degree of a readiness of the public law in second half XIX centuries.

Summing up sights of this outstanding jurist, it is necessary to note absence in them concepts, signs, structure and kinds of illegal acts. At the same time necessity of maintenance of execution of rules of law, suppressions of offences, complex use of measures of civil-law and criminally-legal compulsion, a recognition under certain circumstances of transactions void are actual to this day. One more bright representative of second half XIX century who should be mentioned, the Russian religious thinker, the mystic, the poet, the publicist, literary critic Vladimir Sergeevich Solovev (1853 - 1900) is. Not being the lawyer, this outstanding scientist investigated genesis of criminal law, the punishment and intimidation doctrine.

Recognising the right the integral element of the culture arising along with other products of a universal life, he, nevertheless, did not consider as its initial social regulator. According to the outstanding thinker, the life of any society is defined by known norms - political, civil, police, economic, established in essence before criminal law [120]. These norms find the basis out of the criminal law which does not establish a form of government, administrative device, property right, transition order imushchestv or necessary measures blagochinija. It is necessary to agree With this point of view. Really originally people create controls, a political mode, representations about a public order, and already then start to care of their protection.

In case of encroachments the society reacts to these norms against an offence just as the healthy organism resists to pathogenic elements. This lawful reaction forms criminal law. The researcher focuses attention that the crime and criminality not is any invariable concepts. Their maintenance and volume vary in due course. However there is one conventional law.

In its opinion, in any human society irrespective of imaginary criminals always were, is and there will be valid criminals [121]. It is a question of the people who are possessing strong both resolute malicious will and carrying out it to the detriment of associates with danger to the whole hostel. However not any reaction, according to the philosopher, has lawful value and forms criminal law. The case of fulfilment of illegal punishment over the criminal acts as one of objects of criminal law, but in any way its forming beginning. Thus, it comes to conclusion,
That legal criminal reaction can be carried out only under the general law and in advance provided image.

Presence of law of a double sort is deduced from this postulate. First, it is necessary to define precisely what acts are inadmissible encroachments on vital norms of a society and, in - the second, to establish a measure and a way of lawful reaction to these encroachments [122]. Thus, the criminal law subject consists in definition of crimes and punishments. The urgency of this thesis repeatedly found the acknowledgement by history.

Breaking chronology of a statement, it is necessary to recollect institute of analogy of the criminal law which essence consisted that in case of absence of express indication in the law on the committed crime the norms establishing the criminal liability for similar acts [123] were applied. It is not necessary to consider this norm as legislative defect as in practice it provided width of judicial-administrative reprisals concerning representatives svergnutyh classes, thereby promoting strengthening and development of a socialist system [124]. Thus, this phenomenon carried temporary, and even the forced character. However the given practice distinctly was showed in mass violation of the rights and freedom of the person and the citizen, belittling of authority of the law, to growth of social intensity. Inadmissibility of return to analogy of the criminal law for today is obvious. This circumstance confirms correctness of a postulate of the great Russian thinker.

The philosopher sees origin of a prototype of an offence already in a context of a patrimonial life. For this form of local community of people that vital norms follow from blood relations presence is characteristic
Between members of group also are protected by the blood feud law. Here rules of law root in natural instinctive relations which are very close to the phenomena of a kingdom of animals. Despite lacking during that far epoch of special management personnel and compulsion, a civil society and other social structures the person has not been isolated from a finding in community similar.

According to the Russian religious thinker, even the wild person, as a rule, does not live alone and is a part of any social group - sorts, a clan, gang. So circumstances its meeting with the enemy is not settled by result of single combat. Causing of death or other insult to one of members of group is felt as all set of people, causing in it the general feeling of vindictiveness [125]. However each separate sort can revenge not only for offended, but also to protect the offender. Thus, individual collisions pass in war of the whole societies. Hence, there is a custom of the blood feud which centres with this or that periodicity flash in different parts of the world including in Russia.

The philosopher investigated doctrines of vengeance and verbal vrazumlenija. In its opinion when one person offends another the witness of this insult standing on the moral point of view has double feelings and an image of action. First, there is a requirement to protect offended, and, secondly, to bring to reason the offender [126]. The nature of the doctrine of vengeance consists that it represents historical transformation of a primitive principle of blood feud. The thinker denies it whereas this approach has imaginary proofs and in most cases does not find the expression in existing criminal laws. It saw the best refutation of this doctrine that it finds the greatest application in legislations of the half-civilised people or in
Laws of barbarous times which provided as punishment for drawing of a mutilation causing of the same precisely mutilation, language deprivation for impudent speeches, etc. the Doctrine verbal vrazumlenija also is not ideal.

In this case it turns out, that the state has no right even for a while to isolate from a society the malicious murderer who, undoubtedly, will continue the evil deeds. Similarly it is impossible to place the criminal in the normal social environment even for its own blessing [127]. Really, both these positions are represented unduly categorical. Certainly, guilty it can not be considered as a being deprived of civil rights which the victim can take life with impunity. At the same time completely to release the criminal from retaliatory influence it is inadmissible whereas such practice excludes any preventive maintenance of offences.

In development of a phenomenon of an offence the outstanding religious thinker connects the following stage with process of formation of the state that promoted distinction occurrence between public and the private law, especially clearly shown in the field of criminal law [128]. Within the limits of local community the individual represented real size as all or, at least, the most part of its members should know personally each other. However when with state formation the public group covers already hundred thousand and even millions people, such personal contact becomes simply impossible.

The state takes away the blood feud right from a sort. However the new general power, according to the thinker, cannot protect at once interests of the victim as own and establishes fines (compositio), imposed on the murderer or its house. The philosopher believed, that at an early stage of existence of statehood all encroachments on corporal and property inviolability of private persons
Are considered actually not as crimes, and as personal quarrels behind which correct outcome the public authority [129] supervises. There is a position according to which the most ancient monuments of the domestic law established responsibility for encroachments against a life, health and property, but did not contain structures state or religious offences [130]. However hardly it will be correct to say, that in an Old Russian society there was no everyone representations about encroachments against the government. In this case S.V.Yushkov's position which believed, that, despite lacking in those days representations about the political crimes is represented to more realistic, any encroachments against the princely power associated with high treasons [131]. Therefore to the full to take of a position of the religious thinker it is impossible. It is obvious, that existence of the state is necessary assumes, at least, presence of a prototype of structures of political acts.

Imperfection of system of compositions obviously. Imposing on guilty the fine for any insult put to the private person could not satisfy the dissatisfied party (for example, a family killed) and did not keep the offender, especially if it is rich, from the subsequent evil deeds [132]. Under such circumstances the blood feud cancelled by the state, actually renews and threatens to take away from it the reason of existence. If everyone is independently forced to revenge for the insults it is not clear, for what it will bear the duties imposed by the state life.

In these conditions the state is forced to introduce a public element in the punishment certificate and to assign it to itself. Any citizen is considered as a member of the state which have taken up a problem to protect its safety [133]. Now all encroachments on the person are understood not as insults, and as infringement of the state law for which fulfilment the guilty is exposed to blood feud already from the state. The researcher projects the position on modern to it the state. In its opinion, basic changes in understanding of a crime and punishment have not occurred. The crime was considered as insult or the hostile action demanding otplaty, and the criminal was the enemy who is coming under to punishment. At first as object of insult and the avenger the sort acted, and after a transition period of monetary compositions it was replaced with the state [134]. Difference consisted only that at a patrimonial system of the offender simply killed on a place, and the state transformed the certificate of vengeance taken up to the whole criminal trial before which guilty as it is defenceless.

At the same time the scientist marked qualitative change. If earlier legal nature of a crime was defined exclusively by its external display, i.e. the objective party now in calculation the personal subjective party which before was in a shade [135] is accepted. Having considered V.S.Soloveva's views on genesis of criminal law, the doctrine of vengeance and verbal vrazumlenija, it is necessary to draw a conclusion on degree of their theoretical readiness and the practical importance.

First of all, it is necessary to notice, that the thinker has not offered a definition of illegal act, has not opened its signs, structure and kinds. However it is necessary to understand, that it was not the lawyer and proved presence of the reasonings in this area that the legal philosophy represents one of the philosophical disciplines, adjoining ethics
Or moral philosophy. Nevertheless, the researcher, not being the lawyer, has accurately tracked evolution in understanding of a crime from a patrimonial system up to now. The attention is deserved by its attempt to compare custom of blood feud with modern to it criminal trial. At last the thinker fairly focuses attention that illegal act cannot be considered only in a context of the objective party as the malicious will of the criminal is not less important. The it the certificate on its considerable contribution in razvitee criminal law in whole and offence theories in particular.

Conclusions:

- In works of representatives of classical pre-revolutionary jurisprudence in Russia the further judgement is received by gradation of laws on natural and positive, and also legal behaviour on lawful and illegal;

- Development is received by representations about illegality and fault signs, the circumstances excluding criminality of act, and also a number of classifications of offences on kinds is pawned;

- Sanctions of legal rules and their kinds are investigated, and also genesis of criminal law, the punishment and intimidation doctrine are analyzed.

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A source: Egorov Alexander Aleksandrovich. The category of "offense" in the domestic theoretical and legal thought. Thesis for the degree of candidate of legal sciences. Moscow - 2018. 2018

More on topic the offence theory in works of representatives of domestic jurisprudence of XIX century (A.P.Kunitsyn, N.M.Korkunov, V.S.Solovev):

  1. § 1. Development of methodology of the right and istoriko-theoretical crisis of jurisprudence of second half XIX - the XX-th century beginnings: the right encyclopaedia, legal philosophy and the general theory of law
  2. § 1. Problems of the theory of the constitutional state in domestic politiko-legal thought of second half XIX - the XX-th century beginnings
  3. evolution of representations about sources of law in domestic jurisprudence XIX - the beginnings of the XX-th centuries
  4. § 1. Formation of legal hermeneutics in the Russian jurisprudence in second half XIX – the XX-th century beginning
  5. § 4. Value of domestic constitutionalism of second half XIX - the beginnings of the XX-th century for modern Russian statehood
  6. CHAPTER 1. SPECIFICITY OF DEVELOPMENT OF METHODOLOGY OF THE RUSSIAN JURISPRUDENCE IN SECOND HALF XIX - THE XX-TH CENTURY BEGINNING
  7. § 2. A problem of a parity constitutional and a lawful state in domestic politiko-legal thought of second half XIX - The XX-th century beginnings
  8. § 2. The constitutional problems of parliamentary democracy and the state system form in domestic politiko-legal thought of second half XIX - the beginnings of the XX-th century [306]
  9. § 3. A problem of "imaginary constitutionalism» and feature of domestic politiko-legal thought of second half XIX - The XX-th century beginnings
  10. Chapter 2. The theory and practice of codification of criminal law in the USA in XIX century
  11. development of methodology of the right and istoriko-theoretical crisis of second half XIX - the XX-th century beginnings: the right encyclopaedia, legal philosophy and the general theory of law
  12. § 1. The retrospective analysis of is standard-legal regulation of activity of domestic special services on protection of the first persons of the state to last quarter of XIX century