ПОЈАМ КРИВИЧНОГ ДЕЛА У СВЕТЛУ "УЧЕЊА О НЕПРАВУ" ЈОВАНА СТЕРИЈЕ ПОПОВИЋА
CONCEPT OF CRIME IN LIGHT OF "THE LEARNING ON NON-LAW" BY JOVAN STERIJA POPOVIĆ

Summary/Abstract: Over a century ago, in his natural law theory, Jovan Sterija Popovic pointed out to the distinction between law and non-law, starting from the empirical definition of man as perceived through his daily life experience. Namely, a man acts by the law and abides by its rules as long as his external conduct does not cause any damage or harm to other people, who are perceived as sensitive and reasonable human beings. On the other hand, a man acts "non- lawfully" if his conduct causes harm or loss to others without their consent and free will. According to Sterija, each individual sets his own goals and is free to pursue them because "all individuals are equally entitled to pursue their own ends in keeping with their own nature, freedom and personal dignity." There is a violation of law whenever the "right holder" is impeded or disturbed in exercising his rights.Such a violation of rights is referred to as "non-law". In case that a right of an individual is obstructed (and one's individual rights are jeopardized by another who violates one's personal freedoms), man "has to be conceded the right to defy force by force, and compel the offender to respect his individual right". The most significant form of non-law is crime. It is the gravest type of public criminal delict which brings about the violation of the basic, universal, and fundamental "natural" human rights and freedoms. As crime is the basic kind of criminal delict, the definition of this concept is important for each legal system, its lawful operation and efficiency. It is the basis both for establishing criminal liability and for the application of criminal sanctions. In spite of different theoretical conceptions, our legislator accepted the formal concept of objective and subjective elements of a crime, excluding its substantive element - social danger (which sustained serious criticism of the professional public). The culpability of the perpetrator's conduct being in the foreground, the element which is made most prominent is the subjective element, i.e. the perpetrator's guilt. In case of the absence of any objective or subjective formal element, it radically changes the grounds for excluding the commission of a criminal act (and thus for the exclusion of punishment for the perpetrator) but it also lays down completely different grounds for the question of the existence, establishing and the place of criminal liability in general.Thus, starting from the natural law theory, Jovan Sterija Popovic explained the origin and the purpose of coercion in law which is used against the violator of a right, i.e. against the perpetrator of an illegal criminal delict. In this paper, the authors consider different theoretical and legal definitions of the concept and the elements of crime as the gravest form of non-law.

• Details
• Contents