Unlawfulness in criminal law provisions containing blanket clauses

Abstract

The article addresses the problem of unlawfulness in relation to crimes provided for in criminal law provisions containing so-called blanket elements, as well as in provisions establishing liability for violations of special rules. The paper analyzes the main approaches developed in criminal law theory to the unlawfulness of such provisions — “protective” and “regulatory” approaches. Particular attention is paid to the problem of applying provisions with a “blanket” disposition in cases where blanket legislation (that is, non-criminal legislation positively regulating social relations) is used to give an expansive interpretation to a criminal law provision. In some cases, these results in the application of a criminal law provision to relations that are closely related to, but nevertheless not covered by, the specific criminal law provision, thereby amounting to analogy, which is expressly prohibited by law. It is suggested that where such regulatory rules consist of safety requirements common to various types of economic or other activity, the application of safety standards from one sphere to another does not in itself constitute analogy in criminal law. The article confirms the conclusion that where the legislator has expressly limited, in a regulatory rule, the possibility of its application to other types of relations, the authority applying the law may not apply it to such relations in the course of the legal classification of an offence. However, where regulatory law contains different rules, some allowing their application to the relations under consideration and others excluding it, the authority applying the law is not obliged, when legally classifying an offence, to choose the norm that prohibits such application.

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