Penitentiary Law: Phenomenology and Consistency
Romashov R.A. Penitentiary law: phenomenology and consistency. Penitentiary Science, 2022, vol. 16, no. 3 (59), pp. 234–244. doi: 10.46741/2686-9764.2022.59.3.001
Introduction: law as a systemic phenomenon is represented by 2 theoretical models: a dynamic process and a static construction. Law in dynamics is interrelated stages that together make up the phenomenon of legal life. A constructive (legal and technical) approach to understanding law presupposes its perception as a set of interrelated and interacting means created and used to streamline and protect public relations that have developed at a certain historical stage in a separate socio-cultural environment. Interchangeability of the words “law” and “legislative act” in the Russian legal language causes confusion of the concepts “system of law” and “legislative system”, which results in terminological identification of the categories “branch of law” and “branch of legislation”. The problem of understanding penitentiary law and determining its place in the legal system and the legislative system should be solved taking into account the cyclical nature of Russian political and legal genesis. In modern Russia, introduction of the word “penitentiary” into terminology is connected, on the one hand, with the desire to Europeanize traditional legal institutions by simply renaming them (penal law – penitentiary law). On the other hand, the use of the term “penitentiary” in relation to the system of execution of criminal penalties, as well as to the totality of legal acts regulating public relations in this area, is intended to show transformation of punishment from the institution of state repression into a means of correction and prevention. Purpose: to carry out a systematic analysis of law as a dynamic process and a formalized structure, with an emphasis on understanding penitentiary law and determining its place in legal and legislative systems. The methodological basis is formed by general scientific (systemic, structural, functional), private (comparative legal analysis, intersectoral synthesis, legal systematics) and special (theoretical and legal modeling, cyclic political and legal genesis) legal reality cognition methods. Conclusions: сonsideration of penitentiary law should be carried out in the context of correlation of the categories: system of law, legal system, intersystem of legislation. Taking the method of cyclic political and legal genesis as a basis, it is proposed to consider penitentiary law with regard to the specifics of organization and functioning of the penal systems of the Russian Empire, Soviet Russia (RSFSR/USSR) and the Russian Federation. In modern Russia, penitentiary law is an intersectoral normative community that unites legal acts regulating public relations in the field of penitentiary life. It makes no sense to talk about penitentiary law as a newly formed branch of the system of law, due to the perception of the latter as an objective category (logical speculative construction). At the same time, penitentiary law, penitentiary system, penitentiary science are well-established terminological constructions filled with various semantic connotations both in scientific research and legal acts.
Keywords: System of law; legal system; legislative system; penitentiary; penitentiary law; penitentiary science; penal system
2. Alekseev V.I. Correctional house in the penitentiary system as a result of prison transformations in Russia (1879–1917). Ugolovno-ispolnitel’noe parvo=Penal Law, 2015, no. 4 (22), pp. 69–73. (In Russ.).
3. Baranov A.M. Permanent changes in the criminal procedure law as a property of modern law. Vestnik Tomskogo gosudarstvennogo universiteta=Tomsk State University Journal, 2017, no. 424, pp. 204–207. (In Russ.).
4. Bobrov A.M., Mel’nikova N.A. Is there any reason to single out penitentiary law in the system of Russian law? Penitentsiarnaya nauka=Penitentiary Science, 2022, vol.16, no. 2 (58), pp. 118–126. (In Russ.).
5. Pertli L.F. Prison policy of the Russian Empire (1879–1917). Vedomosti ugolovnoispolnitel’noi sistemy=Vedomosti of the Penitentiary System, 2018, no. 9, pp. 29–34. (In Russ.).
6. Ufimtseva E.V. Development of ideas about the criteria for distinguishing branches of law in Soviet and modern Russian legal science. Yuridicheskie issledovaniya=Legal Studies, 2015, no. 4, pp. 132–163. (In Russ.).
