مشروعیت اخلاقی حقوق جزا Ethical legitimacy of criminal law

1. Introduction. Limitations of the formal-dogmatic method Suppose, and let this stay entirely in the realm of imagination, that the world has been almost completely destroyed after nuclear fallout. Only a few hundred people, from different corners of the world survived thanks to seeking shelter on an archipelago of deserted islands.2 After some time it transpires that they cannot return home as not only did everything get destroyed, but also severely infected, so they decide to stay on the islands and organize a society. It also quickly turns out that the survivors are not impeccable and there is a pressing need to enact criminal laws, not only to sanction violations of other instituted norms, but also to protect the fragile societal relations and other goods the new society considers important. An assembly of the survivors’ representatives needs to decide not only on a catalogue of prohibited acts, but also on the principles of criminal liability, holding perpetrators liable (bringing people to justice) and administering punishment. This is not an easy task due to drastic differences between the survivors on many levels which makes it so that a simple reconstruction of relations from before the nuclear blast is insufficient. It becomes necessary to search for another platform of understanding, one that is a source of convictions in respect of who and for what may be held criminally liable. Of course, contemporarily we are not challenged with having to build legal systems from scratch. Even newly found states, such as the United States or Israel, based their legislation, at least to a marked extent, on the system of their former sovereign. This is not to say, however, that in such cases, or following serious political transformations (like the collapse of the communist regime in Poland), the government need not establish the axiological fundamentals of the state anew, and, consequently, set up a comprehensive scheme of criminal liability. One of the chief aims of this paper is to consider possibilities of searching for sources of the model of criminal liability (perceived not through the prism of a catalogue of prohibited acts, but as principles of responsibility placed normally in the general part of a criminal code) outside of the legal system. Again, I do not wish to detract from the importance of the problem of catalogues of prohibited acts or say it is not fit to be assessed from the perspective of ethical legitimacy of criminal law. On account of the confines of this paper I chose to focus my analysis on the part of criminal law that functions as a mutual part, i.e. all that in maths appears before a bracket.