The Theory of the Dangerous State of the Individual and Its Impact on Criminal Lawmaking: Statement of the Problem

Abstract

Lawmaking should avoid being scientifically ungrounded, unsystematic or chaotic. The lawmakers’ active use of the theory of the dangerous state of the individual in the construction of criminal law norms often results in violating norms of legislative technique and is assessed in different ways in the doctrine of criminal law. The article presents an overview of Russian criminal law norms based on this theory. The legislators classify as dangerous condition the condition of intoxication in cases of traffic rules’ violations resulting in consequences, as well as committing crimes in the situations of criminal or administrative prejustice. In these situations, although the “dangerous” subject commits a criminal offence prohibited by law, establishing liability for it cannot always be seen as a justified action of the lawmaker. These norms often lack a balance between the degree of public danger of an act and the severity of the penalty, which results in the violation of the principle of justice and an ungrounded use of measures of criminal law impact. There is no precedent for establishing liability for occupying the highest position in the criminal hierarchy. A number of questions connected with the legal consequences for a person renouncing the criminal status, and with determining the criteria for such a position have not been resolved at the legislative level. It is concluded that use of the theory of the dangerous state of the individual is justified for persons who violated criminal law prohibitions in the condition of diminished responsibility or have not reached the age of criminal liability. Measures applied to such persons are aimed at overcoming the state of their public danger. It is noted that it is inadmissible to establish criminal liability based on the dangerous state of the person alone, regardless of the specifics of publicly dangerous acts. The author points out that the danger of the person should only be taken into consideration when choosing the measure of criminal law impact and working out measures of preventing unlawful behavior.