Alogisms in criminal procedural legislation

• Main Author: Олена Анатоліївна Лейба
• Format: Article
• Language: English
• Published: Yaroslav Mudryi National Law University 2017-12-01
• Series: Проблеми Законності
• Subjects: legislative defects; alogisms in legislation; logic of structuring of normative material; logical-temporal inconsistency; deontological modality
• Online Access: http://plaw.nlu.edu.ua/article/view/117239
• ISSN: 2224-9281; 2414-990X

The article is devoted to the definition of the characteristic signs of legislative defects, which are caused by violations of the rules of logic, and find a negative reflection on the conceptual-categorical apparatus of the criminal procedural legislation. It is noted that the alogisms in the legislation, as a result of violation of the rules and laws of logic when constructing legal norms, is one of the most widespread and rather significant legislative defects. The alogisms in the placement of normative material within the law; alogisms in causative relationships; alogisms that lead to impossibility of practical implementation of the legal order and give rise to so-called "dead norms"; alogisms in deontological modalities are emphasized. In particular, such legislative defect as violation of the logic of structuring of normative material is considered using an example of the rules governing the bail and home arrest. The importance of structuring and logical placement of normative material, especially within the limits of the codified normative legal act is stressed. It is noted that according to the laws of logic, causal relationship involves temporal precedence of a cause and the subsequent corresponding effects. At the same time, attention is paid to the fact that the violation of this clearly apparent law is found in the current criminal procedural law, which undoubtedly should be regarded as one of the varieties of legislative defects. Inconsistency of the norms of the logic of criminal procedural legal relationships is defined as alogisms, which lead to the impossibility of practical implementation of the norm. Taking into account the specifics of the sphere of criminal justice, it is indicated that the logic of the construction of criminal procedural relations, generated by the laws of the functioning of this social institution, should be observed. It is noted that when constructing criminal procedural norms, the latter should be functionally suitable (viable). In the opposite case, the logic of the construction of criminal procedural relations will be violated, and the created legal order will supplement the examples of the phenomenon, which in the theory of law is called "dead norms". The presence of all these types of alogisms in the norms of criminal procedural law is noted. The proposals on elimination and overcoming of the described legislative defects are formulated.