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Vol. 39, Nº 68 (Enero - Junio) 2021, 441-462
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
The substrate of criminal-legal inuence
DOI: https://doi.org/10.46398/cuestpol.3968.28
Oleksandr Kozachenko *
Oleksandr Sotula **
Vasyl Biblenko ***
Kostiantyn Giulyakov ****
Oleksandr Bereznikov *****
Abstract
The aim of the article is found on the idea of measure as a
substrate of criminal-legal inuence. The publication proposes
to consider the measure as a substrate of external forms of legal
inuence and criminal-legal measure as a primary element of all
external forms of criminal-legal inuence (in connection with the
commission of a criminal act). The analysis allows us to conclude
that the substrate of legal inuence is a basic element of socio-
legal regulation (which substantively combines a system of techniques
and methods of inuence used to obtain a positive and socially signicant
result). It should be understood that a criminal-legal measure is a system
of techniques and methods of coercive and rehabilitation-encouraging
inuence of the state on criminal practices (criminal offenses, objectively
illegal acts, abuse of law) and lawful post-criminal behavior, which is
carried out by the law, determined by the socio-cultural environment. It is
concluded that such ideas of Leonardo Polo as coexistence, the abandonment
of mental limit, his thoughts on ethics, knowledge, and law can be applied
successfully when the criminal-legal measure is characterized by several
features that distinguish it from measures of the legal inuence of another
industry.
Keywords: sociocultural environment; substrate of criminal-legal
inuence; criminal-legal measure; coercive and incentive
inuence methods; judicial discretion.
* Doctor of Legal Science, Mykolayiv Institute of Law of the National University “Odesa Law Academy”.
ORCID ID: https://orcid.org/0000-0002-8412-8639. Email: avk.criminal.law@gmail.com
** Doctor of Legal Science, National University “Odesa Law Academy”. ORCID ID: https://orcid.
org/0000-0003-4633-4500. Email: sotula64@gmail.com
*** Ph. D. candidate, Kherson State University. ORCID ID: https://orcid.org/0000-0003-3688-2458.
Email: biblenko1985@gmail.com
**** Ph. D. candidate, Kherson State University. ORCID ID: https://orcid.org/0000-0003-3470-4690.
Email: kostantguliakov12345@gmail.com
***** Ph. D. candidate, Kherson State University. ORCID ID: https://orcid.org/0000-0003-4797-8797.
Email: alexander.bereznikov@gmail.com
442
Oleksandr Kozachenko, Oleksandr Sotula, Vasyl Biblenko, Kostiantyn Giulyakov y Oleksandr
Bereznikov
The substrate of criminal-legal inuence
El sustrato de la inuencia penal-legal
Resumen
El objeto del artículo se encuentra en la idea de medida como sustrato
de inuencia penal-legal. La publicación propone considerar la medida
como sustrato de formas externas de inuencia jurídica y la medida penal-
legal como elemento primario de todas las formas externas de inuencia
penal-legal (en relación con la comisión de un acto delictivo). El análisis
permite concluir que el sustrato de la inuencia jurídica es un elemento
básico de la regulación sociojurídica (que combina sustantivamente un
sistema de técnicas y métodos de inuencia utilizados para obtener un
resultado positivo y socialmente signicativo). Debe entenderse que una
medida penal-legal es un sistema de técnicas y métodos de inuencia
coercitiva y de fomento de la rehabilitación del Estado sobre las prácticas
delictivas (infracciones penales, actos objetivamente ilegales, abuso
de la ley) y conductas posdelictivas lícitas, que se lleva a cabo por la ley,
pero determinada por el entorno sociocultural. Se concluye que ideas de
Leonardo Polo como la convivencia, el abandono del límite mental, su
pensamiento sobre la ética, el conocimiento y el derecho pueden aplicarse
con éxito cuando la medida penal-legal se caracteriza por varios rasgos que
la distinguen de las medidas de la legalidad.
Palabras clave: entorno sociocultural; sustrato de inuencia criminal-
legal; medida penal-legal; métodos de inuencia
coercitivos e incentivadores; discreción judicial.
Introduction
Law, as a unique social phenomenon, arises with the emergence of the
state, because an indispensable attribute of any legal norm is the possibility
of using state coercion in case of non-compliance with its instructions. On
the other hand, it is with the help of legal norms that states are able to
perform their functions properly (Tkalych et al., 2020). Only taking into
account the interests of as many members of the human community as
possible while adhering to clear rules and principles of coexistence can
lead to the development of a full-edged society and state (Shyshka and
Tkalych, 2020). In civil society, citizens are not the subjects of political-
power relations and public law, but private individuals with their interests,
subjects of private law, participants in civil-legal relations (Kharytonov et
al., 2019).
In the modern criminal-legal doctrine, several complex and actual
problems are under the attention of scholars. We can mention here three of
those problems. First, the need to severely limit the scope of criminal law
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exclusively to those public relations that allow state intervention through
the use of the criminal-legal method and to ensure regulation exclusively
within the framework of criminal law (focuses on the need to treat criminal
law as a basic or as the only source of criminal law). Secondly, the permanent
problem of criminal law should be recognized as the objective principles
of determining the grounds for application (criminalization), or refusal
to apply (decriminalization) of criminal-legal inuence. Third, the search
for effective and acceptable (from the standpoint of humanity) forms of
criminal-legal inuence.
The last problem is complex, where the issue of sentencing (penalty)
or waiver of punishment (depenalization), while remaining central,
increasingly give way to the search for alternatives to punishment measures
of legal inuence, and those that ensure the effectiveness of the latter in
the process of simultaneous punishment application. The solution of the
outlined problems, related to the implementation of proper criminal-legal
inuence requires the study of the basic element – the substrate of criminal-
legal inuence, which is a criminal-legal measure, and the substrate of the
latter is a measure. It should be noted that recently only the rst attempts
are made to determine the substrate of criminal-legal inuence, which is
the basis for all statutory external forms of criminal-legal inuence.
Current criminal-legal studies need to be taken into account. It should be
noted that scholars mostly focus on the analysis of certain types of criminal-
legal measures (Vecherova, 2012; Yermak and Kuts, 2018; Krizhanovsky,
2019), their classication (Yaremko, 2014; Ponomarenko, 2020), and
problems of application (Yashchenko, 2014; Provotorov, 2018), which gets
us to assist that recently only the rst attempts are made to determine the
substrate of criminal-legal inuence.
The article is aimed at dening the substrate of criminal-legal inuence,
its objective and subjective features through the philosophical prism,
particularly, Polo’s heritage, the substantive features of which are inherent
to ontological, epistemological, and ethical dimensions of the subject of our
study.
1. Historical context for the formulation of the concept of
substrate of criminal-legal inuence
In some sense, it is a grace that cultural and philosophical studies on
criminal-legal inuence, which takes form in criminal-legal measures, are
possible nowadays in Ukraine, even though USSR fell apart almost 30 years
ago. By mentioning that, we would like to emphasize, that it is impossible
to separate the subject of our research from the historical context of its
formation. In this regard, it is essential to point out that the place for an
individual in the Soviet Union was far from acceptable in a civilized society.
444
Oleksandr Kozachenko, Oleksandr Sotula, Vasyl Biblenko, Kostiantyn Giulyakov y Oleksandr
Bereznikov
The substrate of criminal-legal inuence
As it was mentioned by Polo (2008), the right to move freely was grossly
violated in the Soviet Union. Moreover, research for any philosophical
foundation of the criminal law and corresponding legislature were
primitively reduced to the Marxism-Leninism ideology, the dialectical
materialism of Marx, and the dictatorship of the proletariat (Berman, 1948;
Pipes, 2011). It will not be a surprise to say that these ideologies had little
sympathy for a certain class of people, as well as for the law or legal system
built on the rule of law, private property, and liberties respect (Pipes, 2003).
All that t perfectly into the outline that public administration was a
single possible form of government power-given supposedly from the
people of the USSR. In case of state violation of the law or its inability
to ensure human and civil rights, even those enshrined in the Soviet
Constitution, citizens did not have the possibility of legal remedy (Berman,
1979). Accordingly, the role of courts was reduced to the announcement of
the verdict, which was predetermined in the highest power structures. State
lawyers had no choice but to play their part in this scheme, which practically
meant that one could only dream of any effective defense. In this way, it is
difcult to name the Soviet law system anything other than misanthropic
and inquisitorial. Thereby, its inuence on Ukraine’s jurisprudence can
be acknowledged as hazardous, although it is hard to object that our
legislature has not left some harmless acquirements of it. Nonetheless, as
we have mentioned that the problem of nding a substrate of criminal-legal
inuence has little research base even nowadays, it is valuable to take an
effort of its philosophical substantiation as our country is moving towards
Euro-Atlantic integration.
For example, in 1922 (after the revolution) corruption, about the ght
against which the Bolsheviks talked so much, did not go away. Literally
in the very rst days after the creation of the extraordinary commitment
of Dzerzhinsky, it turned out that two of its investigators took bribes for
the termination of cases and the release of those arrested. After that, what
could one say about ordinary militiamen, investigators and members of the
tribunals, not endowed with high political trust? (Romanova, 2019).
Although, in Ukraine, a criminal legal tradition started partially in the
Soviet Union authors, we do not consider that this part of the law should be
understood in a misanthropic and inquisitorial, but in a more rational way
with the objective of achieving the common good or human ourishment.
2. Results and discussion
2.1 Terminological basis of the study
Before we move on to direct analysis of the research results, it is
necessary to clarify what is meant by certain expressions. We shall start
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with the explanation of some crucial points, rst of which should be the
substrate of criminal-legal inuence.
The substrate, or the root cause, the foundation of the criminal-legal
inuence may be fully comprehend as an essential humane characteristic,
i.e., human nature. Hence, that is an unchanging set of properties, which
affect all men thoughts and actions. Thereof, it also has an impact on a
larger scale, which has its representation through a group of people,
society, civilization, humanity and the Universe itself. This idea provides
us the basis to refer our study to the area of interest of criminal law theory,
philosophy of law and philosophical (transcendental) anthropology as well.
As Polo (2015) stated: “All men are of the same nature, but we are not all
the same person” (2015: 44). We can also nd a justication to our vision
of human essence in the continuation of this line of thought by Polo: “If one
accepts human essence, then with more reason one must say that there is
a human nature, because the essence is the culminating consideration of
nature” (2015: 78).
There is also an appearance of the terms “criminal-legal inuence” and
“criminal-legal measure” throughout the article. Here we will leave a hint
to their better understanding. By doing so, it should be bear in mind that
criminal-legal inuence has its external representation in criminal-legal
measures, while its internal part contains legal awareness and legal culture.
For example, ethical norms can form criminal-legal sanctions that have
the force of law, and this will be the representation of legal awareness and
legal culture of a society in the state. While they are certainly exercised on
a broad scale of citizens, ethics and morality are still not the criminal-legal
measures; rather, they inuence the algorithms of applying the criminal-
legal measures, but not reduced to them. That is why criminal law is not
about applying penalties and punishments only. That means the inuence
and the measure are correlated as a whole and a part. Criminal-legal
measures are applied only when a person commits a crime.
However, criminal liability as a part of criminal-legal measures is not
always applicable, since there are some exclusions to it. For example, when
a minor or insane commits a crime, there are rules, which exclude their
criminal liability, although criminal-legal measures such as detention
or involuntary hospitalization still can be applied. Other manifestations
of criminal-legal measures can be listed. They include measures such
as (house) arrest, place of stay change ban, expatriation (citizenship
revocation (loss) and expulsion), forced community service, conscation,
nes, the prohibition to hold certain positions or perform certain work,
the prohibition of communication with or approaching certain people,
freedom restrictions, imprisonment, etc. Overall, this conceptual scheme
is investigated in more detail in the second half of the article with regard to
the criminal-legal implications.
446
Oleksandr Kozachenko, Oleksandr Sotula, Vasyl Biblenko, Kostiantyn Giulyakov y Oleksandr
Bereznikov
The substrate of criminal-legal inuence
It is also worth mentioning what do we mean by the usage of the
word “transcendental”. In the context of our paper, it is referred to
as a substantively higher level of being to the level subordinate to it.
Wherefore, something transcendental occurs in the process of transition, or
transcendence, which can be determined by ascendence and descendence,
insofar as they have vectors in time and space.
The history of such terms like aforementioned can be traced far back in
time. For example, Saint Augustine of Hippo (1996) used to popularize them
in De Vera Religione: “Noli foras ire, in te ipsum redi. In interiore homine
habitat veritas. Et si tuam naturam mutabilem inveneris, transcende et
te ipsum. Sed memento cum te transcendis, ratiocinantem animam te
transcendere. Illuc ergo tende, unde ipsum lumen rationis accenditur”
(1996: 39-72).
Do not go outward. Return within yourself. In the inward man dwells truth.
If you nd that you are by nature mutable, transcend yourself. But remember in
doing so that you must also transcend yourself even as a reasoning soul. Make for
the place where the light of reason is kindled (Hippo, 1959: 39-72).
Finding everlasting beauty, truth and harmony was essential for
the Christian philosopher in the process of ascendence from sensual to
intelligible (Cambronne, 1982; O’Donnell, 1992).
We will also not be mistaken if we say that before proceeding to a detailed
examination of the subject of research, we should briey characterize
Polo’s approach to questions of law, that is, jurisprudence. It should be
emphasized here that it was important for him to focus on ethical norms
initially, which in general constituted his approach for determination
of law. As we remember, ethics according to Polo (2008) consists of not
only goods, but also virtues and moral norms, which are the norms of the
law as their expression. Therefore, the law has only a formal nature as we
understand it when we say, for example, that this is a specic legislature.
Nevertheless, its true meaning is of the constitution of a moral norm, which
is, so to speak, the forerunner of jurisprudence itself.
Polo (2008) notes that the existence of exclusion rules is a capacious
formulation of what is denitely undesirable, thus cuts off what is not worth
doing both for society and for man and nature as such, an incorrect and
unhappy act. The reason – is unhappy lies in the fact that true happiness is
worth seeking only in following pure duty, not in replacing it with pleasure.
Polo (2008), like Kant and Aristotle, draws an important axiological line
between them. It would be much more difcult, Polo (2008) notes, to
summarize or to count nitely of what should be done than to outline the
opposite, and we cannot but agree with this. Thus, the aforementioned
conceptual schemes serve as axiological support in the study of the issue of
law, the branch of criminal law, and the problem of criminal-legal inuence
in this article.
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2.2 Philosophical acknowledgements concerning the issue
To formulate a point of view on the possibility of penalization or,
conversely, the depenalization of an act, it should be noted that signicant
in this context is the idea of transcendence of the social environment.
In general, it can be described as the process of going beyond the prior
state, the abandonment of former condition. However, it is necessary to
turn to the remarks, the essence of which is to characterize the features of
the very construction of what is meant by the transcendence of the social
environment (transcendental social environment). Wherefore, there is
also a need to answer the question of why is it so important to call it an
environment instead of just naming it a “transcendental society” and what
does it mean for a society to be transcendental. Moreover, the role they play
in the essence of criminal-legal inuence, or criminal law per se, should be
considered as well.
First of all, we would like to emphasize that we as individuals, as
humans, live and develop in connection with each other. Here is important
to consider Polo’s notion of coexistence and the idea that only a free society
can outgrow itself (Polo, 2008; 2015). By postulating that insight, he leads
the argumentation that to emerge means to be in cooperation with others,
which takes a voluntary decision of a free (and a good) will, wherefore the
concept of freedom comes into play. On the contrary, he admits, isolated
systems lack evolution, in so far as they have no such options as a free
choice, therefore they are not free by themselves (Polo, 2008). Inasmuch as
the idea of coexistence is integral for society and by changing itself society
impacts everything around (which happens to be a reciprocal inuence), we
would like to operate within the term “transcendental social environment”.
With that being said, we can now move on to the philosophical implications
of the subject of our research, which enable criminal-legal inuence to arise.
We found ve prerequisites for the effectiveness of the criminal-legal
inuence:
First one is that it takes time for the social environment to change
and transcendence to occur. From this point of view, a time difference
is necessary to re-evaluate the compliance of measures of social-legal
inuence with the goals and objectives of society, which are built to achieve
the positive result of multi-sectoral transformations.
The second reason for the criminal-legal inuence to occur is
quantitative and qualitative changes between the prior and the following
conditions of the social environment. Their essence is the interconnection
and correlation with each other and their carriers are individuals. Likewise,
this process takes place both at the micro- and macro- levels. They are
the consciousness and self-awareness of each individual, and the social
environment, respectively.
448
Oleksandr Kozachenko, Oleksandr Sotula, Vasyl Biblenko, Kostiantyn Giulyakov y Oleksandr
Bereznikov
The substrate of criminal-legal inuence
The meaning of such metamorphoses is to rethink ideas, principles,
positions, knowledge from a new point of view through the prism of social
necessity and expediency of applying a criminal-legal inuence, which in
turn crystallizes based on the intention of positive change. However, do to
so, we need to take an attempt to know one’s max capacity of thought and
ability to overcome the mental limits, wherefore, one should nd its own
cognitive restrictions to overcome them. In other words, this process can be
called rational reasoning, as well as rational knowledge by virtue of cognitive
act. Here it is important to mention the term from Polo’s philosophy, which
is named “the abandonment of the mental limit”. Briey, this method can
be explained as “the detection of the mental limit and conditions such that
it can be abandoned” (Polo, 2015: 10).
The third prerequisite of criminal-legal inuence is the coexistence. In
this way, the fulllment of self is possible in society only. As an example,
various scholars (Mulgan, 1974; Kullmann, 1991; Yack, 1993; Miller, 2017)
point out the famous idea of man as a political animal, the original concept
of which belongs to Aristotle. Indeed, as we feel the need of communication
with others, we seek their help, understanding and support. Hence, this is
one of the factors of social organization. Accordingly, a man knows oneself
not in the pursuit of the categorical imperative, but in interaction within
society, which allows distinguishing one’s being from the being of other
people (Polo, 2015; Vdovina, 2019). The factor of freedom is also important
to consider in this regard.
The fourth issue that has to do with the reasons of criminal-legal inuence
is the levels of its occurrence. One way or another, but changes in the social
environment are possible only based on the experience gained at the level
of self-awareness. Polo used to deal more with conscience as its ethical
dimension. In this way, moral consciousness was of his particular interest
as well. We, in turn, want to emphasize that the solution of the questions of
whether this or that phenomenon corresponds to the very concepts of good
and evil is taken individually, in no way denying that ethical issues exist
objectively. In so far as it is natural for a person to choose between, roughly
speaking, A and B, decision-making and the responsibility for it lies on the
individual. Nevertheless, the choice itself does not exalt the role of decision-
maker, rather hints at the objective existence of good and evil, which are
represented as A and B correspondently.
We can nd similar implications in Polo (2008: 129): “Ethics moves
between the alternative of the ethically positive and the ethically negative:
virtues and vices, good and evil”. However, for him, the concept of freedom
goes beyond the voluntary acts or the freedom of choice as it is more of a
principal characteristic of freedom being transcendental than the derivative
from the metaphysical being of a person (Polo, 2015). The reason for this
is that a person co-exists with being, neither grounded in it nor grounds it
(Polo, 2015).
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In this way, the ethical dimension as the fth characteristic of the
transcendental social environment must be taken into account. Polo (2008)
wrote on this issue:
The human spiritual tendency, the will (the same thing happens with the
intellect), does not derive its purpose from the species, but from complete
happiness, which can only be obtained through the virtuous adherence to the true
and highest good. The human species is neither the end nor the highest good, as
the humanism closed to transcendence claims (2008: 104).
Thus, we have characterized the main qualities that determine the
substrate of criminal-legal inuence from a philosophical perspective.
Now we will consider in more detail the general picture with the help of
the synthesis of all reasons for the subject, and through the prism of Polo’s
ideas, which demonstrate their effectiveness in the framework of our study.
In the initial point of Polo’s (2005) system of transcendental anthropology
the postulates that human nature is equally to being, the cosmos, or anything
metaphysical in this regard. At the same time, the philosopher leaves the
right to metaphysics to take on fundamental roles, however, in the issue of
primacy, he insists that man is neither a foundation nor founded, but the
same primary principle, which gives rise to the system of transcendental
anthropology (Polo, 2010). This is a signicant idea for our research, since
human nature lies in the substratum of criminal-legal inuence. This, in
turn, means that the issue of criminalization or decriminalization of an act
will be resolved both at the individual and at the general social, or collective
level. That implies it is necessary for the members of society to have a
sufcient level of legal culture, which is achieved by their own thoughtful
efforts and unswerving adherence to ethical norms. Here Polo’s ideas of
coexistence and the abandonment of the mental limit are applicable and
their consideration is possible both at the individual and at the collective
levels, which enables us to deal with the notion of transcendental social
environment.
As we have already hinted above, it makes sense to talk particularly
about the notion of environment, since society itself is in interaction with
everything around. By that, here we mean nature, architecture, technology,
etc. This implies reciprocity, a mutual impact. Thus, it is important to
consider namely the notion of the social environment here, as humans
are the members of society and the driving force of that effect. From this
perspective, it makes sense to assume that in characterizing society as a
transcendental environment, one can talk about the coexistence of man and
society, of human and being, and in this regard, to highlight the human
coexistence with nature (environment).
At the same time, these transformations do not always have positive or
ethically welcomed results. We can nd the same acknowledgment of this
insight in Polo (2008). There, he assessed that in so far as human societies
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The substrate of criminal-legal inuence
are generally free systems, it enables either their ourishing or decadence
and this is a normal state of affairs as soon as a free system has options.
Here it is essential to trace the demarcation between the natural order of
things and the inuence of man on this order. In this way, a person can
act contrary to the natural order of things. Polo (2008) notes that the will
as such can be considered as voluntas ut natura and voluntas ut ratio.
While the latter is part of the former and is purely humane, the former
exists objectively and does not depend on human decisions. Therefore,
Polo (2008) continues, that voluntas ut natura is a radical act of desire, a
characteristic of a person. Hence, a person cannot inuence it, insofar as it
is his attribute. Polo (2008) agrees with ideas of Aristotle and Aquinas and
insists that it is natural for a person to strive for happiness, and this trait is
exclusive to the natural will of a person, as one cannot strive for anything
else but happiness.
Polo’s ideas of the abandonment of the mental limit and the coexistence
are signicant to consider while dealing with the appearance of criminal
law and criminal-legal inuence. He rstly described his methodology of
the abandonment of the mental limit in his book “El acceso al ser” [Access
to Being], in which he formulated, that by following this line of thought four
consequences, or themes, can be achieved (Polo, 1964a). They are extra-
mental being and extra-mental essence on the side of metaphysics, and
human coexistence and human essence on the side of anthropology (Polo,
2015). For him, to use this approach means to deal with the unicity, which
express itself in the form of mental presence. In turn, mental presence
exists as mental operation and this is the precise limit, described by Polo
(2015). He notes, that the act of knowing is an immanent operation: “I
see what I see while I see, I think what is thought (the object of thought)
while I think” (2015: 20). Therefore, to abandon it means to put a division
between personal being and metaphysics, which enables transcendental
anthropology to arise. According to this conceptual scheme, human essence
is the central point of considering the application of criminal-legal inuence,
and coexistence gures out to be its habitable sense.
3. Theoretical-legal justication of applied approach to
transcendental anthropology in order to dene the concept of
criminal-legal inuence and its measure
To some extent, it is especially exciting to study the relationship between
Polo’s ideas and jurisprudence, since he was related to it directly at the
beginning of his philosophical path (Franquet, 1996; Yepes Stork, 2006;
Selles and Esclanda, 2015). Thereof, Polo as a lawyer is rather a potential
that has fully revealed himself in the broader hypostasis of Polo as a
philosopher. In this section, we will touch upon his achievements of thought
in the area of law, as well as the purely legal theoretical constructions in the
sphere of the penal law.
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Thereby, some of the questions that have their consideration below
arise in this regard. For example, is the emergence of criminal law norms
dictated by nature or by rationality? Alternatively, how do we know what
are their origin and background? In this way, to comment on them requires
an acceptance of the fact that both of the mentioned factors play a role
in the existence of criminal law norms. However, the main point here is
the natural reason, or ethical principle, by which criminal-legal inuence
appears. What is called rationality rather affects the form, while expressing
it mechanically as the technical legal language. At the same time, moral
norms, which are an attribute of the essence of law, rather than an
instrument, ll these norms with meaning. We can claim also, that Polo
(2008) characterized normativism and ethical rationalism as a way to
consider ethics reductively (Polo, 2008).
Here is what Polo (2008) himself thought about the notion of law in its
correlation with moral norms:
Law and cultural customs are norms derived from ethical norms. What we call
ethical norms are the laws most distinctive of the human being, most exclusively
his, because their fulllment is free. And since freedom is responsible for this, they
are not mechanisms; rather, freedom can decide not to fulll them (2008: 34).
At the same time, such transcendental as love gures out to be the main
positive norm, when dealing with natural law, according to Polo (Polo, 2010;
Pia Tarazona, 1999). In this regard, the concept of synderesis (classically is
an innate habit of the intellect, that judge what is good to do, and evil to
avoid) is crucial for natural law. It can be described as the fundamental
element of the human act of knowledge of ethics by nature (Vanney, 2007).
Polo (2008) preferred to formulate it simply this way: “Do good, act; act
as much as you can and improve your actuation” (2008: 106). In addition,
classical authors also used to pay attention to the synderesis. For example,
Saint Thomas Aquinas used it in his works (Aquinas, 2020).
Following the more legislative side of the issue, we can state that for
Polo (1984), laws are something formally ctional, meaning they are not
given to a man by nature; rather, they are invented by man as a tool in
order to make it easier to resolve conicts and disputes. In this sense, Polo
used to treat the concept of law as nomos (Polo, 1984). By that was meant
the Ancient Greek word (νόμος), which described laws governing human
behavior mainly for the just distribution and rewards in case of litigation
(Encyclopaedia Britannica, 2017; about the polian notion of the law as a
strong ction, Polo, Quién es el hombre, 1991; cf. also Riofrio, 2020, pro
manuscrito). Moreover, the law as such can be considered as a strong
ction, meaning that its action prolongs physical reality, or objectivity, but
does not have sole power, because, roughly speaking, it does not have a
body (Polo, 1991) gives an example of a wall that does not exist in fact;
instead, there is a “no trespassing” sign). Thus, for Polo (1991), the law is a
cultural phenomenon and has an empowering effect on man.
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The substrate of criminal-legal inuence
In his early works, Polo tends to consider law as a normative system,
which aspires to shape the order of things (Polo, 1964b). His attitude to
law among other activities, or techniques, as he called them, is such that
it is an art rather than science, although it has scientic features in it
(Zegarra, 1991). In this way, he proposed to place law at the level of second
techniques, which are higher than agriculture, military, handicraft, etc.
(Polo, 1984). At the same time, politics for him is art even more subtle
among the above-mentioned techniques, that is, the superior art, when
compared to techniques (Polo, 1984).
It is necessary to note also that the question of coercion presence in law
inuences its validity. At the same time, it is not an obligatory component
in order to characterize the law as such:
The law has a coercive companion. Some have even said that the essence of
law is coercion and that if there is no coercion, there is no law. It is not like that,
but the coercion is a sign that it is not a ction in the sense of fantasy (Polo, 1991:
123, own translation).
This remark has strong connotations with the subject of our research,
inasmuch as the criminal-legal inuence implies the same idea of coercion,
which overall expresses itself in the criminal-legal measures, but not
reduced to them.
Herein, let us consider some theoretical legal acknowledgments of
what has been expressed above. First of all, a criminal-legal inuence must
undergo several institutional changes to appear. It needs to be both socially
acceptable and of an adequate measure. In the meantime, penalties must
be closely linked to ethical considerations, which, in turn, are open to the
knowledge of the person, which is always an act, according to Polo (2008).
All of that requires responsible cognitive work. That means criminal-
legal norms must be carefully thought out so they have a straightforward
and direct, exceptional effect. In legal theory, it is called the principle of
legal certainty (Panov, 2015). The rule of law also needs to be emphasized
(Waldron, 2016).
Aquinas in “Summa Theologiae” stated that the law is “an ordinance of
reason for the common good, made by him who has care of the community,
and promulgated” (Aquinas, 2020). This formula has four parts (four
elements, or causes) in it. They are the form (ordinance), the aim (the
common good), the support (reason), and the agents of authority or
community. Whereof, we will try to follow this scheme of argumentation
in the same reasonable fashion if we are to dene what the concepts of the
substrate of criminal-legal inuence and criminal-legal measure are.
Focusing on the denition of substrate of social-legal inuence, it should
be noted that it is appropriate to understand it as an element of regulation,
which substantively combines a system of techniques and ways of exercising
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coercive and incentive inuence, which are used to obtain a positive and
socially signicant result (Kozachenko, 2011). Thus, its measure, as an
external manifestation of the socio-legal inuence, has the following three
features:
Firstly, it is dened (in the legal sphere) or perceived (outside the legal
regulation) as an independent socio-legal phenomenon used to regulate the
behavior of participants in public relations (Kozachenko, 2016).
Secondly, each social-legal measure is formed based on a combination
of techniques and methods of permissible inuence. Traditionally, there
are two independent ways of social and legal inuence – coercion and
encouragement. In this case, the rst is used indifferently to the person’s
desire to be exposed to a certain inuence, while the incentive depends
on such a desire. In turn, coercion and encouragement from two possible
patterns of behavior of the subject of inuence: coercive and voluntary
behavior of the person. Given the fact that the paradigm of modern socio-
legal regulation is based on the principles of anthropology, which elevates
human interests to the level of the core factor of social life in various forms
of its existence (Kozachenko, 2011), it is necessary to emphasize the priority
of encouragement over coercion (Kozachenko, 2011). Thus, the measure of
social-legal inuence should contain either only encouragement to a certain
type of behavior, or encouragement and coercion, and the latter method of
regulation is used only if the subject fails to perform his duties voluntarily
(Kozachenko, 2011).
However, a detached theoretical question regarding the line between
encouragement and coercion arises. In famous Milgram Experiment
(Milgram, 1963), the subject was given a choice between ceasing and
continuing the process of what one thought to be a study of interconnection
between pain and memory, but was the trial of the subject’s obedience de
facto. The method of this experiment included a gradual increase of electric
shock hits up to 450 V for continual wrong answers with the involvement
of the instructor, the subject as a “teacher” and the actor in the role of a
“student”, who was actually just pretending to take shock hits as they were
fake, which subject was not aware of (Milgram, 1963).
In addition, an unconditional reward for participating was provided.
The group of undergraduate students showed the same results without any
participatory payment whatsoever. The continuation of the experiment
could be halted by the subject’s demand (Milgram, 1963). Instead, under
the instructor’s inuence, the subjects continued to strike other participants
with an electric shock. If we are to use the results of the experiment in our
study, it seems appropriate to emphasize that encouragement will take
place in any mechanism of criminal-legal inuence where there is authority
as a sociopsychological gure or stimulus.
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The substrate of criminal-legal inuence
Additionally, we need to point out that there are some sorts of criticism
(Sontag, 1981; Kalmykov, 2018) regarding the idea of anthropology, the
meaning of which we can trace back and nd it in the works of Kant (1974;
1998) and explorers of his legacy (Sussman, 2001; Cohen, 2010). We can
also nd its understanding as to the justication of man in Ukrainian
philosophical literature (Andros, 2002; Khanzhy, 2018a, 2018b).
Nonetheless, for our study, this concept should be understood as the
primacy of the human element among the principles of legal reasoning.
The third feature of the socio-legal measures is that they are aimed at
exercising such regulatory inuence, which brings to certain social relations
(micro-level) and society and its institutions (macro-level) a positive,
concrete, and public benet (Kozachenko, 2011).
In addition, there are several approaches to understanding the notion
of criminal-legal measures. The rst is based on the radical denial of the
criminal-legal measures independence (Grishchuk, 2007; Havronyuk,
2013). Merits of this approach lie in the fact that its use emphasizes the
possibility of applying only those criminal-legal measures provided by law.
However, the problems of features and properties of such measures remain
unresolved.
Another is the “selfsame” approach, that is, to characterize a criminal-
legal measure through the same category that is to be dened. For
example, Gutorova (2014) suggested that criminal-legal measures should
be understood simply as measures established by criminal law. They are
applied in the case of an act provided by the Criminal Code and consist
of the deterioration of the legal status of a person. Under this approach,
the main task of features characterization is not scientically substantiated
either.
Other representatives of the criminal-legal doctrine suggest dening
the category of “measure” by choosing a certain basic element (Vecherova,
2011; Yashchenko, 2013; Lozinskaya, 2014). This position is subject to
criticism, insofar as in the process of its application, the denition does not
become specic, as abstract concepts are used in its formulation.
Overall, by giving the denition of criminal-legal measures, it should
be considered as a system of techniques and methods of coercive and
rehabilitation criminal law practices of the state, which is carried out on the
basis of the law determined by the cultural environment (Musychenko and
Kozachenko, 2015) that has developed in the specic historical conditions
of society (Kozachenko, 2016). These techniques and methods should be set
up in a rational way for the happiness of the person (as a “an ordinance of
reason for the common good” as Aquinas said), using the best active part of
the person, his creativity, as Polo said. The idea of a transcendental social
environment is applicable here all the more so.
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4. The essential characteristics of the criminal-legal measure
as a substrate
The Ukrainian doctrine has studied in deep the characteristics of the
criminal-legal measures, taking into account the Soviet doctrine. According
to this doctrine, the following features are inherent for the criminal-legal
measures.
Firstly, the criminal-legal measure is appointed and implemented
exclusively by the state. This function lies in the state authorized bodies
and ofcials. It is possible only on a normatively dened basis, which is
expressed by law or judicial precedent. This feature is also present in the
case of concluding a conciliation agreement, as such an agreement requires
further approval by a court (Kozachenko, 2016). The main idea about
this feature is that criminal-legal measure application is public in nature.
Looking ahead, it should be noted that the last feature focuses on clear
adherence to the procedure for applying criminal-legal measure.
Secondly, criminal-legal measures are subject to appointment only if the
grounds provided by law are established. In turn, they have general and
special features. For example, the general feature is committing a crime,
and special is an abuse of rights, improper post-criminal behavior, etc.
(Krizhanovsky, 2019).
Thirdly, the system of criminal-legal measures is formed on a cultural
and ethical basis, which explains a certain variety of types of such measures
in the criminal law of different countries (Musychenko and Kozachenko,
2015; Kozachenko, 2016). The implications of that were investigated in the
rst half of the article.
In addition to these properties, each criminal-legal measure is
characterized by features that determine its structure. They can be divided
into those that are objective and which are subjective (Kozachenko, 2016).
Basically, the objective features of criminal-legal measures have to
do with their purpose. Generally, it occurs as social justice, something
that Finnis (2011) described as “the fulllment of all human persons in
all societies” (2011: 451). Polo (2013) expands this consideration by the
acceptance of the fact that law is justied by the need to entitle people,
hence, it belongs to the moral order. In his opinion, that is why coercion is
intrinsic to the law (Polo, 2013).
In this way, the enforcement of criminal-legal measures requires strict
compliance with the rule of law, which is expressed in the correspondence
between:
1. socially dangerous acts and coercive measures.
2. damages and restitution.
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Oleksandr Kozachenko, Oleksandr Sotula, Vasyl Biblenko, Kostiantyn Giulyakov y Oleksandr
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The substrate of criminal-legal inuence
3. positive post-criminal behavior (rehabilitation) and incentives.
4. personal, community and state interests (Musychenko and
Kozachenko, 2015).
In addition, it must be noted that more than one major criminal-legal
measure cannot be applied at once (Kozachenko, 2016). Although, some
subsidiary measures, for example, conscation (Yermak and Kuts, 2018) or
certain activity ban, can occur.
Substantive features of a subjective nature have to do with individuals
to whom the measures are applied (Yermak and Kuts, 2018). Noted, that
the subjective composition of criminal-legal measures is characterized
by the presence of either 1) general subject, which coincides with the
characteristics of the subject of the crime, or 2) special subject, which
represents its additional properties, or unique subject, that lacks certain
features of the subject of the crime (Yermak and Kuts, 2018).
Finally, the subjective properties of criminal-legal measures are
expressed in the procedural component, which ensures the application of
a particular criminal-legal measure, taking into account the characteristics
of both the act itself and the person who committed it (Yashchenkо, 2014;
Krizhanovsky, 2019). That aspect is reected in judicial discretion, that
is, the activity of the judge as an arbiter (Kozachenko, 2016). According
to Aquinas it is a matter of “reason,” but not any reason, but the reason
in service to achieve the common good. According to Polo, discretion is
possible because law is ction, but ction for the sake of the person and his
coexistence on society.
All in all, the application of criminal-legal measures should be carried
out responsibly in order to ensure the necessary and sufcient inuence
(Ponomarenko, 2020). In turn, its nature is determined by the inner
convictions of the relevant procedural law, which is formed as a result
of impartial, objective and fair establishment of all the circumstances
(Kozachenko, 2011). Criminal-legal measures are a system of normatively
dened measures of inuence, and are focused on punishment, correction,
prevention, re-education, medical care and treatment of persons, and
criminal restitution. The basis for criminal-legal measures is considered to
be the commission of an act crime and encroaches on the system of social
values, which is formed based on the indisputable nature of the denition of
natural human rights and freedoms and the changing nature, determined
by the level of development of the nation and culture.
Conclusions
Hence, the discovery of correspondence between the philosophical
heritage of Leonardo Polo and the theoretical implications of criminal law
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grants access to the possibility of dening the criminal-legal measures as
a substrate. In turn, its basic element should be considered as a humane
characteristic. It permits us to study this issue in the eld of transcendental
anthropology, by means of which the role of man becomes equally signicant
to explore, likewise its coexistence in society, and with being. Additionally,
it should be emphasized that Polo’s concepts of the abandonment of the
mental limit and the coexistence are interconnected, and play a crucial
role in the subject of our study. Thus, while abandoning the mental limit,
one acquires transcendental freedom, which is coexistence, as only a free
person can genuinely co-exist with others and with being. Thereof, Polo’s
transcendental anthropology is an attempt to balance anthropology and
metaphysics in such a way of putting a person on an equal footing with
being, allowing humans to reach the level of personal existence.
Inasmuch as the essence of law deals with moral norms, the issue of
criminal-legal inuence arise inevitably. It is connected to ethics since
obligations and prohibitions are concerned. That brings us to the legal
awareness and legal culture, which constitute the internal structure of
criminal-legal inuence. Furthermore, its external action is expressed in
the form of criminal-legal measures. Inuence includes measures, but not
reduced to them. The primary element of criminal-legal measures should
be recognized as a legal measures of appropriate nature. That means the
system of techniques and methods of coercive and rehabilitation criminal
law practices of the state, which is carried out on the basis of the law
determined by the cultural environment that has developed in the specic
historical conditions of society.
It is concluded that a criminal-legal measure is characterized by several
features that distinguish it from measures of legal inuence used in other
areas of both public and private law. The selected features of both objective
(purpose, grounds) and subjective (the subject of application, judicial
discretion) nature indicate the suitability of the proposed approach for
the denition of criminal-legal measures with further use at the doctrinal,
regulatory, and law enforcement levels.
At the same time, the proposed research supplements the basis for
further investigation of both criminal-legal inuence and criminal-legal
measures in the area of transcendental anthropology and the philosophy of
law, as well as for the practical application of its results.
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