Functions of legal responsibility in the theory of law and state (analysis and synthesis of theoretical studies)

The article reveals different approaches to defining the functions of legal responsibility, which are given by different authors. The functions of legal responsibility are considered as a category of theory and history of law, which are detailed in sectoral legislation and expressed in legislation in the form of punishments, penal­ties and other forms. Different approaches and points of view underline the dynamism of this phenomenon. The aim of the study is to identify the main features of the functions of legal responsibility and various types of functions as directions of the legal impact of legal responsibility on public relations. With the help of gen­eral and special research methods the analysis and generalization of theoretical material, consideration of var­ious types of functions of legal responsibility in order to identify the patterns of development of this theoreti­cal category are carried out. As a result of the study, we presented our own approach to understanding the functions of legal responsibility, which, in addition to the sanctions of a legal norm, also includes psychologi­cal impact aimed at correcting the behavior of a person brought to legal responsibility. The functions of legal responsibility include upbringing and education as a necessary element of the process of correcting the of­fender in order to more effectively influence the mind of the offender. The article draws conclusions that re­veal the concept and signs of functions of legal responsibility, which are in constant development, substanti­ates the provision that in the category of legal responsibility, in addition to punishment, other positive and negative measures of a coercive nature should be included, provided by the coercive force of the state, di­rected to correct the person who committed the offense.

Introduction

In the modern theory of law the definition of legal responsibility is an established category that summa­rizes the entire set of measures of coercive influence of the state on social relations. Basically, these are measures that are of an unfavorable nature, which in the legislation have the form of punishment, while the categories of punishment and legal liability are not identical, which is due to the goals, objectives of legal responsibility, which is reflected in the concept of the functions of legal responsibility. The problems of de­termining the functions of legal responsibility are quite relevant in modern legal science, since this is a legal impact on public relations in order to prevent and reduce the number of offenses. At the same time, the func­tions of legal responsibility are correlated with the goals, social values of a particular society, which expects effective influence on the prevention of offenses and bringing offenders to justice from the state. The alloca­tion of the main types of legal liability, such as criminal, administrative, civil, disciplinary, involves the allo­cation of functions of legal responsibility in each form, while it should be noted that it is generally accepted to highlight the general functions of legal responsibility in the theory of law. The selection of this category is an important and necessary stage in the study of the functions of legal responsibility as a theoretical category that summarizes the entire set of signs of responsibility as a type of social responsibility clothed in a legal form.

In modern conditions more and more attention is paid to the issues of legal responsibility, since based on the modern approach to understanding the state-regulatory impact on public relations, namely through legal responsibility, the modern state assumes to implement its main functions. It should be noted that the question of the number and quality of the functions of legal responsibility remains open, since during the entire existence of the state as a politically organized society the issues of prosecution and the application of punishments are central, which is especially important in our time. In the twenty-first century, new ap­proaches to understanding the functions of legal responsibility are required, which is due to the goals and objectives of a modern society, built on such principles as humanism, justice, protection and provision of human rights, non-discrimination on various (generally recognized) grounds, which also presupposes the formation of a new approach to understanding the functions of legal responsibility.

In the system of law of the Republic of Kazakhstan there are various branches and institutions of law, which is the result of the development, improvement, and complication of law as a political and legal phe­nomenon; accordingly, the functions of legal responsibility are being improved and complicated, which must meet the requirements of modern society. At the same time, legal responsibility is often attributed to func­tions unusual for it, forgetting that these functions are to a certain extent developed by legal science and it is also unproductive to take the position of legal idealism, as it is to deny the role and effectiveness of legal responsibility altogether. In this perspective, not only and not so much the punitive function of legal respon­sibility, but also the preventive and educational functions, the purpose of which is to prevent the commission of offenses, becomes of great importance. In this aspect legal education and legal training are becoming in­creasingly important as the most important components of legal culture, which should become the basis for the lawful behavior of all participants in legal relations, thereby excluding offenses. It is impossible to achieve this goal in the foreseeable future, however, it is possible to significantly reduce the number of of­fenses with the competent and consistent use of scientific recommendations aimed at the practical applica­tion of the results of scientific research in the field of legal responsibility.

Methods and materials

The research uses general and specific methods of scientific knowledge. With the help of analysis and generalization, legal sources, various approaches and definitions of individual scientists, individual opinions and provisions are considered that reveal the problems of implementing the functions of legal responsibility in the theory of law. The research is based on a dialectical approach that reflects the variability and dynamic development of the concept of functions of legal responsibility. At the same time, the general functions of law and legal values are considered as a metaphysical basis, which serve as the foundation of legal regulation in a specific historical period. The considered phenomenon is studied in the inextricable connection of social relations, general functions of law and legal regulation of social relations. Based on the method of compari­son, analogy, by studying theoretical institutions in the theory of law, the definition and main features of the functions of legal responsibility as one of the main legal institutions of law are revealed. The comparative legal method allowed us to consider different approaches, theories, concepts and categories in a dialectical relationship that reveal the concept and main features of the functions of legal responsibility given by various authors, which made it possible to form our own approach to the phenomenon under study and formulate our own definition of the functions of legal responsibility.

Results

In the course of the research various points of view of the authors who devoted their research to the cat­egory of legal responsibility were considered. In the course of the study we obtained the following results based on the analysis of scientific sources reflecting the modern understanding of the functions of legal re­sponsibility. The authors analyze the functions of legal responsibility based on the understanding of the term “legal responsibility”, while referring to the etymology of the term “functions”, as well as in relation to the category of “functions of law”. Despite the fact that in the scientific and educational literature there are many definitions and opinions about what to mean by the category of “function of legal responsibility”, there is currently no single definition of it. Most of the authors still highlight the same characteristic features of the functions of legal responsibility. We are in solidarity with the opinion of the authoritative Russian scientist in the field of the theory of law B.T. Bazylev, who notes the need to disclose the concept of the function of le­gal responsibility as an important factor in modern legal science with the aim of a more detailed and deep penetration into the essence of this social phenomenon and legal institution. Ultimately, this is due to the need for more effective implementation of the use and further improvement of legal norms on legal respon­sibility [1: 47]. A.V. Katasonov notes the need to study the functions of legal responsibility based on the general functions of law, considering this ratio as general and particular. At the same time, he notes that the functions of legal responsibility are specific manifestations of the functions of law [2: 14, 15]. T.N. Radko notes that legal responsibility acts as a general form of implementation of the social functions of law [3: 10], while the main criterion will be the social purpose of law. The social purpose of law follows from the social nature of law as the main regulator of the most important social relations for society. It is this aspect that is decisive — the social orientation of the functions of law and the functions of legal responsibility. The Soviet legal theorist M.S. Strogovych in one of his works noted that the correct understanding of responsibility is important in the political, social and legal sense, since it is important for the scientific development of the problem of individual rights and for increasing the responsibility of state bodies, public organizations, offi­cial persons [4: 76]. We must agree with the position that the legal institution of legal responsibility is one of the basic institutions for ensuring human rights and freedoms, as well as the interests of society and guaran­teeing the rule of law and order [5: 13]. The functions of legal responsibility act as a connecting link, thanks to which the goals of legal responsibility turn into an objective reality, a specific result of legal impact on a certain public attitude [6: 387]. The functions of legal responsibility are determined by the historical devel­opment of law and society. Depending on the goals set for the society and its political institutions, the func­tions of legal responsibility also develop. These functions are due to the objective laws of the historical de­velopment of society and the state, as well as the tasks of legal regulation in a specific historical period [7: 169]. The fact that the functions of legal responsibility are determined by the laws of social development and follow from the goals, essence and social purpose of legal responsibility is noted by many authors [8: 128]. This emphasizes the dynamic nature of the category of “functions of legal responsibility”, which is deter­mined by the goals and objectives that society sets before the state — the imperious, political organization of this society. It seems important to timely identify the needs and interests of society, analyze these interests and develop recommendations for the formation of functions of legal responsibility that are adequate to the modern needs of society.

A great influence on the formation and consolidation of the functions of law in legal sources is played by the essence of law, that is, its social purpose, which in general predetermines the main functions of legal responsibility [9: 155]. It is the social expectations from legal regulation that are embodied in the category of “legal responsibility” since it is the proper behavior of the subjects of legal relations that is formed through this institution. We must agree with the provisions of the author, who notes that the functions of legal re­sponsibility are the main directions of the impact of legal norms on social relations, through which the goals of legal regulation of social relations are achieved [10: 7]. Indeed, from the point of view of the theory of law, any legal norm must be provided with a sanction as a necessary element of a typical rule of law. With­out such a guarantee of obligation, a legal norm can be regarded as a recommendatory wish of the state, which in general can be equated with other wishes and commands of social power. This allows us to consider such norms as social norms enshrined in a legal form, but in the absence of a sanction for execution or non­fulfillment, such a norm does not acquire its legal quality — an obligation secured by the coercive force of the state. At the same time, any regulation of social relations presupposes the establishment of certain boundaries of behavior, through which it is prohibited to transgress. The functions of legal responsibility are the establishment of special legal boundaries in public relations regulated by legal norms. At the same time, legal responsibility is the reaction of state authorities to the violation of boundaries outlined by legal norms. Accordingly, one should take into account the opinion of the authors who note that the functions of legal re­sponsibility are the main directions of regulatory impact on social relations which are expressed in the estab­lishment of special legal boundaries and measures of state and power influence [11: 54]. This is carried out in order to regulate specific social relations, through stimulation or coercion in order to implement legal norms, which is due to the systemic legal purpose of responsibility as a social institution.

The functions of legal responsibility are determined by the general functions of law, among which the main ones are the regulatory function, the protective function, the evaluative function, and also the educa­tional function. This is the most common approach to understanding the functions of law, which determines the main directions of the impact of law on public relations. It is generally accepted to understand functions as a social purpose of law in its regulatory essence. Based on the axiological approach to understanding the functions of law, in this study the understanding of the functions of legal responsibility follows from the generally recognized functions of law, being their theoretical continuation. Based on this, the functions of legal responsibility should be defined as the main directions of the influence of state authorities on public relations in order to punish the offender, prevent an offense, restore violated rights, and foster lawful behav­ior. These functions are in constant development due to the constantly changing needs and interests of mod­ern society.

Discussion

The discussion about the functions of legal responsibility and their classification is carried out through­out the entire existence of law as a social phenomenon. Throughout the history of human development the issues of punishment, education and proper behavior were very important and required their solution. This is always due to the needs and interests of a concrete historical society. For example, historical development has resulted in a more humane understanding of legal responsibility. Currently, such important changes are taking place as the gradual receding into the past of mass intimidation by the severity of punishment; consol­idation of the principle of individual responsibility; refraining from corporal punishment; the circle of crimes for which the death penalty is assigned has been narrowed; the main type of punishment becomes a fine, not imprisonment. On the whole, this is evidence of the humanization of punishments. Measures of influence on the offender began to bear a humanistic character and instead of the punitive function, the preventive, restor­ative and educational functions of legal responsibility gradually come out. Accordingly, the effectiveness of legal responsibility currently depends on the adequacy of the reflection in the legislation of the functions of legal responsibility.

In the theory of law the issue of identifying and classifying the functions of legal responsibility is con­troversial, since there are different points of view, as well as different expectations of society from the role of state bodies in preventing offenses and bringing offenders to legal responsibility. For example, J.Yu. Yuzefovich proposes to consider the goals of legal responsibility as the main criterion for classifying the functions of legal responsibility. This makes it possible to single out such functions as punitive, penal, preventive, compensatory, educational [11: 66–68]. M.P. Trofimova suggests highlighting the following types of functions of legal responsibility: regulatory, preventive, restorative, punitive, educational functions [10: 6]. P.V. Gagolev considers the following functions of legal responsibility: punitive, restorative, regula­tory, preventive and educational, proposing to consider them as factors that have a legal impact on the im­plementation of legal responsibility systematically, in aggregate, ensuring the implementation of the general legal goal — effective and correct regulation of public relations. The functions of legal responsibility are of a systemic nature, they are closely interrelated and interact with each other. At the same time, acting systemat­ically, each function of legal responsibility becomes the owner of a new quality, which does not have a sepa­rate function of legal responsibility [12: 13–14]. Considering the issues of classification of functions of legal responsibility it is necessary to proceed from the objectives of the study, while it is necessary to consider it expedient and justified to single out such functions of legal responsibility as punitive, organizing, preventive, restorative and educational [13: 12], which generally reflects the needs and interests modern society in the field of legal regulation.

It should be noted that, despite the progressive development of social relations, the scientific literature notes that the primary function of legal responsibility is punishment, that is, a punitive (penalty) direction. Despite the social, humanitarian development in modern society, a large number of people still understand legal responsibility as punishment for a wrongful act. People expect the same from the state (from state bod­ies), which, in the opinion of a part of modern society, should first of all punish, and only then educate. This is noted by many researchers who write that the main and most important area of legal liability is a penalty, punitive appointment. The legislation emphasizes that punishment is not an end in itself, but a means of re­educating the offender, while, along with punishment, legal responsibility is designed to fulfill a legal func­tion (that is, to help restore violated rights through legal and other measures) [14: 487]. This feature is also emphasized by P.A. Kabanov, who notes the punitive function of legal responsibility as the main direction of legal impact on social relations, behavior and consciousness of the offender. This is due to the laws of social development, which determines the priority of the punitive function, along with the prevention, restoration of violated rights and education [15: 6]. In general, since the creation of the state, a person's responsibility to the state has been formed, mainly in the form of punishment, as a rule, this punishment was applied in various historical periods on grounds that are often not related to responsibility in the modern sense. The creation of a modern state formalized punishment, forming the concept of legal responsibility. At the same time, the theoretical understanding of responsibility, which is important for the modern understanding of this phenom­enon, appeared in the period of modern times. During the period of enlightenment, Voltaire advocated pro­portionality between crime and punishment, between the severity of crime and punishment, and was also opposed to the death penalty. G. Grotius defined punishment as a retribution for a crime, the transfer of the evil caused by the crime to the culprit. It pursues a threefold goal: the benefit of the perpetrator of the crimi­nal act, the benefit of the victim, or the benefit of all. Montesquieu sees the reasons for all licentiousness in the impunity of crimes, and not in the weakness of punishments. The punishment must be consistent with the nature of the crime. I. Kant defined punishment as causing suffering for a crime committed [16]. Currently, the humanization of all spheres of social life leads to changes in legislation, such as the transformation of punitive legal responsibility into milder forms of punishment. This is the expansion of legal liability in the form of fines, as well as the introduction of new approaches to the implementation of legal liability of a puni­tive nature: a) optimization of criminal penalties; c) refusal of capital punishment; c) widespread use of con­ditional sentences. The most significant changes in the practical implementation of legal responsibility in recent times are the establishment of norms on the responsibility of the state before citizens, recognition of the right of citizens to the possibility of judicial protection of violated rights, to compensation for moral harm, and the humanization of criminal responsibility. The emergence of a variety of relatively new func­tions of legal responsibility.

Compared with the punitive function of legal responsibility, new functions of legal responsibility which are currently developing should include the preventive function of legal responsibility, the essence of which is the prevention of new offenses. The preventive function of legal responsibility is the legal impact of norms containing legal responsibility on the behavior of subjects of public relations. The main purpose of the func­tion is to prevent offenses and displace antisocial behavior, as well as to reduce the actual and legal possibil­ity of committing a new offense. In his research A.V. Katasonov argues that the preventive function is aimed at achieving the goals of general and private prevention. Along with this, an important aspect is the dis­placement from the consciousness of the individual of antisocial attitudes, legal nihilism and the formation of attitudes of obligatory lawful behavior, respect for the law in general and the rights of others [2: 8]. Some authors, along with the preventive function of legal responsibility, highlight the educational function of legal responsibility as a directed legal impact of the norms of legal responsibility on individual and public con­sciousness, which consists in the formation of legal awareness, legal culture [17: 7]. It seems that the preven­tive and educational functions pursue one goal — the prevention of offenses. It seems more correct to con­sider the preventive function of legal responsibility in the form of legal education, legal education and in other forms of impact on individual and public consciousness.

An important function of legal responsibility is the restorative function, as one of the areas of legal im­pact on disturbed public relations, while the goal is to restore public relations and their ordering [17: 6]. At the same time, the restorative function can be carried out in the form of restoration of violated rights, pay­ment of compensation and other forms of redressing harm and other material and non-material consequences and results of illegal behavior.

As a separate function of legal responsibility, some authors highlight the organizing function of legal responsibility, which consists in regulating public relations by establishing certain prohibitions, restrictions, obligations, as well as establishing specific rights of subjects in the implementation of legal responsibility [13: 13]. Currently, new approaches to understanding the functions of legal responsibility are being devel­oped, while new functions are being identified that are designed to reflect the needs of society in modern conditions.

Conclusions

The functions of legal responsibility are the main directions of the impact of legal responsibility on pub­lic relations. When carrying out scientific research it is necessary to determine the criteria for the classifica­tion of functions, as well as to separate the types of functions and forms in which the functions are imple­mented. Accordingly, the criteria for distinguishing the functions of legal responsibility should be deter­mined by social purpose (essential criterion): punitive, preventive, legal. At the same time, it is necessary to highlight the forms in which the functions of legal responsibility can be realized: the punitive function is im­plemented in the form of criminal punishments, administrative and disciplinary sanctions. The preventive function of legal responsibility is implemented in the form of legal education and legal education. The re­storative function of legal responsibility is implemented in the form of regulation of public relations with the aim of restoring the legal status of subjects of law and restoring the procedure for regulating public relations that existed before the offense. Based on this understanding of legal responsibility and its functions, various types of legal responsibility can be distinguished. In addition to the traditional types of legal responsibility, in which there is a punitive function, other types of legal responsibility can be distinguished in which there is no punitive function, but there are preventive and legal restorative functions. These types of legal responsi­bility can include constitutional, financial, family, environmental responsibility. The functions of these types of legal responsibility will consist of a preventive function and a law restorative function. Based on the defi­nition of legal responsibility, which enshrines the obligation of state coercion, the preventive function and the law restorative function must be provided with measures of state coercion.

In the theory of law legal responsibility is considered as the application of measures of state coercion against a person who committed an offense, however, legal responsibility in a broad sense can also be con­sidered as an obligation to comply with legal norms. This approach is reflected in the concept of division of legal responsibility into prospective and retrospective responsibility, which emphasizes that this division is carried out according to the following criterion: the time of implementation of responsibility. Accordingly, the function of prospective legal responsibility, as a responsibility directed to the future, is a preventive func­tion, which is designed to prevent the commission of new offenses. This function can be implemented in the following forms: legal education, legal training, legal education (informing on legal issues in necessary cas­es), treatment in cases specified by law. In our opinion, prospective legal responsibility from a person's obli­gation to comply with the law is distinguished by the provision of coercive power of the state, while obliga­tions in the legal sphere, as a rule, are implemented by the subjects voluntarily, based on the obligation based on social norms. At the same time, at present, prospective legal responsibility is not developed and cannot realize its preventive function due to the fact that this direction is not fully developed in the theory of law. It should be noted that the preventive function of prospective legal responsibility is implemented by bringing persons with deviant behavior to prospective legal responsibility. It seems important to carry out a more de­tailed development and regulation of the preventive function of legal responsibility in the theory of law and consolidate this function in the legislation of the Republic of Kazakhstan.

References

1. Bazylev, B.T. (1985). Yuridicheskaia otvetstvennost: teoreticheskie voprosy [Legal responsibility (theoretical issues)]. Krasnoiarsk: Izdatelstvo Krasnoiarskogo universiteta [in Russian].
2. Katasonov, A.V. (2010). Preventivnaia funktsiia yuridicheskoi otvetstvennosti [Preventive function of legal responsibility]. Extended abstract of Candidate’s thesis. Kazan [in Russian].
3. Radko, T.N. (1974). Yuridicheskaia otvetstvennost kak obshchaia forma realizatsii sotsialnykh funktsii prava [Legal respon­sibility as a general form of implementation of social functions of law]. Proceedings of the AFL of the USSR Ministry of Internal Affairs — Trudy VSL MVD SSSR. Volgograd 9, 9–17 [in Russian].
4. Strogovich, M.S. (1979). Sushchnost yridicheskoi otvetstvennosti [The essence of legal liability]. Sovetskoe gosudarstvo i pravo — Soviet state and law, 5, 72–77 [in Russian].
5. Noskov, S.A. (2007). O poniatii instituta yuridicheskoi otvetstvennosti [On the concept of legal liability institution]. Pravo i politika — Law and policy, 3, 13–19 [in Russian].
6. Khachaturov, R.L. & Lipinskiy, D.A. (2007). Obshchaia teoriia yuridicheskoi otvetstvennosti [General theory of legal re­sponsibility]. Sankt-Peterburg: Publishing house of R. Aslanov “Legal Center Press” [in Russian].
7. Gabrichidze, B.N. & Chernyavskiy, A.G. (2005). Yuridicheskaia otvetstvennost [Legal responsibility]. Moscow: Alfa-M [in Russian].
8. Melkumyan, M.G. (2010). O vospitatelnoi funktsii yuridicheskoi otvetstvennosti [On the educational function of legal re­sponsibility]. Vektor nauki TGU — TSU science vector, 3, 127–129 [in Russian].
9. Shevchenko, Ya.N., Sobchak, A.A.& Luts, V.V. et al. (1988). Povyshenie roli grazhdansko-pravovoi otvetstvennosti v okhrane prav i interesov grazhdan i organizatsii [Enhancing the role of civil responsibility in protecting the rights and interests of citizens and organizations]. Kiev: Naukova dumka [in Russian].
10. Trofimova, M. P. (2000). Funktsii yuridicheskoi otvetstvennosti [Functions of legal responsibility]. Candidate’s thesis. Sa­mara [in Russian].
11. Yuzefovich, Zh.Yu. (2004). Funktsii yuridicheskoi otvetstvennosti i formy ikh realizatsii po rossiyskomu zakonodatelstvu. [Functions of legal responsibility and forms of their implementation under Russian law]. Candidate’s thesis. Moscow [in Russian].
12. Gagolev, P.V. (2007). Yuridicheskaia otvetstvennost v sisteme mer gosudarstvennogo prinuzhdeniia [Legal responsibility in the system of measures of state coercion]. Extended abstract of Candidate’s thesis. Saratov [in Russian].
13. Matskevich, A.V. (2006). Realizatsiia funktsii yuridicheskoi otvetstvennosti organami gosudarstvennoi vlasti (na primere prokuratury). [Implementation of the functions of legal responsibility by public authorities (by the example of the prosecutor's of­fice)].Extended abstract of Candidate’s thesis. Moscow [in Russian].
14. Muzychenko, P.B. & Muzychenko, Yu.P. (2013). Pravovoi analiz yuridicheskoi otvetstvennosti inostrannykh grazhdan po zakonodatelstvu RF [Legal analysis of the legal responsibility of foreign citizens under the legislation of the Russian Federation]. Uchenyye zametki TOGU — Scientific Notes TOGU, 4, 486–494 [in Russian].
15. Kabanov, P.A. (2005). Karatelnaia funktsiia v sisteme funktsii yuridicheskoi otvetstvennosti [Punitive function in the system of functions of legal responsibility]. Extended abstract of Candidate’s thesis. Kazan [in Russian].
16. Kant, I. (1994). Metafizika nravov [The metaphysics of morals]. Moscow: ChORO [in Russian].
17. Solomenik, N.L. (2007). Vosstanovitelnaia funktsiia yuridicheskoi otvetstvennosti [Restorative function of legal responsibil­ity]. Extended abstract of Candidate’s thesis. Kazan [in Russian].