Материал: disser_arhipov

158

noticeable that it also has little capacity to provide an answer, or at least a direction, for determining the semantic limits of law in the framework of this study.

Ultimately, J. Stanton-Ife proposes to address another group of views from the field of moral philosophy, which focuses on the principle of neutrality of justification. As J. Rawls also noted, disagreement in society about moral principles is unlikely to disappear in the medium to long term, so the rationale for laws should not include a reference to judgments about the merits or demerits of certain ways of life.268 In general, the author concludes that, in real life, it is extremely difficult to approach more or less universally acceptable notions of the fundamental limits of law, unless these are instrumental limits.269

What is the point of considering the debate on the moral limits of law in the context of this paper? The fact is that until now they have been considered as the main ones for legal semantics as well. For example, at the previous stages of the development of legal systems, the question of the possibility or impossibility, for example, of publishing and distributing certain artistic works (without deviating far from the main examples, we can focus on Nabokov’s “Lolita”) could well be solved on the basis of concepts of the relationship between moral philosophy and law, whatever they may be. In this way, an approach would be used that would actually reveal the moral limits of law. Now the problem is that many practices and cases similar to previous ones, and seemingly allowing the use of moral concepts to clarify the possibility of law enforcement, in fact, have a very different focus and do not allow us to rely on a moral and philosophical discourse alone. Another main example of research is the blocking of a site with a “recipe for making dynamite” in Minecraft, which clearly demonstrates this.

In practice, there is a tendency, in most cases, that the question of the extent of the law and the question of the criteria of absurdity in the interpretation or application of the

268Stanton-Ife J. The Limits of Law. Section “5. Neutrality and Epistemic Restraint”.

269Stanton-Ife J. The Limits of Law. Section “Conclusion”.

159

law are directly or indirectly related to the question of the relationship between law and morality. The term “morals” is used in a broad sense and includes what is referred to as “public morality” when referring to the relevant tradition of word usage. The examples below refer to the part of the discussion that aims to reconstruct the criteria of absurdity in the context of the problem of the limits of law, since it is the interpretation and enforcement acts that are contrary to morality that are most often cited as absurd.

Perhaps one of the most obvious and relevant examples in the general context of the work will be the norms of the current positive civil law of the Russian Federation, which fully reflect the general approach inherent in the Romano-Germanic legal system. Thus, in the first part of the Civil Code of the Russian Federation (as amended on 01.09.2018) (hereinafter, “RF CC”) the word “morality” is used in four cases. First of all, in Paragraph 2 Item 2 Article 1, according to which civil rights may be restricted on the basis of federal law and only to the extent necessary for the purpose of protection, including the protection of morals (similarly to Part 3 Article 55 of the Constitution of the Russian Federation). According to Item 4 Article 167 of the RF CC, the court has the right not to apply the consequences of the invalidity of the transaction, if their application would contradict the principles of law and order or morality. Article 169 of the RF CC directly establishes the conclusion of a transaction for the purpose contrary to the principles of law and order or morality as a basis for recognizing such a transaction as invalid. Similarly, in accordance with Item 4 Article 181.5 of the RF CC, unless otherwise provided by law, the decision of the meeting will be null and void, if it is contrary to the principles of law and order or morality.

Positions of the leading civil law scholars are quite typical of the interpretation of the concept of “moral basis” as provided by Article 169 of the RF CC (and, actually, in other cases, where this or a similar concept is used in the text of the Code). Thus, the 2018 commentary under the editorship of A.G. Karapetov (and co-authored by him) notes that

160

«[t]he fundamentals of... morality should be understood as the fundamental ethical values shared by the majority of the population of the country... it is necessary to exceed a certain intuitively determined critical level of ethical unbearability (emphasis added – V.A.) of the transaction. For example, the fact that a transaction may seem quite fair does not in itself make it null and void under Article 169 of the Civil Code of the Russian Federation; it requires a blatant, “shocking to conscience” contradiction of the transaction to the most basic notions of morality (emphasis added – V.A.)».270

One cannot but note (positively) the aesthetic and substantive similarity of this commentary to the content of the “Radbruch Formula”, which, in general, refers to such situations. The authors of the commentary emphasize the complexity of the application of evaluation concepts, especially in the context of possible individual ethical ideas of a judge or the multinationalism and multiculturalism of the Russian Federation. However, in its Ruling No. 226-O of June 8, 2004,271 which is also referred to by the authors of the commentary, the Constitutional Court of the Russian Federation notes that

«…the concepts of “public legal order” and “morality”, as well as all evaluation concepts, are filled with content depending on how they are interpreted by civil society actors and law enforcement practices, but they are not so vague that they do not provide a uniform understanding and application of the relevant legal provisions. Article 169 of the Civil Code of the Russian Federation states that the qualifying feature of an antisocial transaction is its purpose, i.e. achievement of such a result, which does not simply meet the law or the norms of morality, but contradicts – obviously and apparently for the participants of civil turnover – the basics of law and order and morality. Anti-sociality of the transaction, which gives the court the right to apply this provision of the Civil Code of the Russian Federation, is revealed in the course of legal proceedings taking into account all the actual circumstances, the nature of violations committed by the parties and their consequences».272

270Karapetov A.G. Commentary to Articles 168–169 of the Civil Code of the Russian Federation // Transactions, Representation, Limitation of Claims: Article–by–Article Commentary on Articles 153 – 208 of the Civil Code of the Russian Federation / V.V. Baibak, R.S. Bevzenko, S.L. Budylin et al.; edited by A.G. Karapetov. M.: M–Logos, 2018 [Electronic edition]. 1264 p. – Access from the legal reference system «ConsultantPlus» (accessed: 10.01.2018). – P. 260.

271See: Ruling of the Constitutional Court of the Russian Federation of 08.06.2004 No. 226–O «On refusal to accept for consideration the complaint of the open joint–stock company «Ufa Oil Refinery» on violation of constitutional rights and freedoms by Article 169 of the Civil Code of the Russian Federation and Paragraph 3 Item 11 Article 7 of the Law of the Russian Federation «On Tax Bodies of the Russian Federation» [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 02.10.2018).

272Transactions, Representation, Limitation of Claims: Article–by–Article Commentary on Articles 153 – 208 of the Civil Code of the Russian Federation. P. 260.

161

The authors of the commentary under the editorship of A.G. Karapetov offer three possible dogmatic interpretations of the concept of such kind of a transaction (deal) that is contrary to the fundamentals of law and order and morality. The first is that a transaction can be considered as contrary to the principles of law and order and morality if it contradicts the imperative norms of law, which themselves are aimed at protecting the foundations of law and order and morality. In this case, it is a “qualified case of an illegal transaction”. The authors believe that this approach is “as restrictive as possible, highly questionable and does not correspond to the continental European tradition”.273 Second, the hypotheses of Article 168 and Article 169 of the RF CC are not mixed, and Article 169 of the RF CC applies only to those transactions “which are not expressly prohibited by law, but infringe on the fundamental principles of morality and the foundations of law and order”.274 The point of this approach is to “exclude the situation when the law fails to prohibit everything that should be expressly prohibited and does not formally prohibit transactions that infringe on the foundations of law and order and morality, but that cannot be tolerated by law”.275 As the authors point out, this approach is characteristic of the foreign legal order, referring to “good manners” or “public order”. Third: Article 169 of the RF CC can be applied to both cases.

It is stressed that the Russian law enforcement practice up to now has been based on the first approach, however, that such an approach should be revised and the third approach should be adopted, otherwise it makes no sense to eliminate the legal consequences in the form of recovery of the amounts received to the income of the state (without an explicit

273Transactions, Representation, Limitation of Claims: Article–by–Article Commentary on Articles 153 – 208 of the Civil Code of the Russian Federation. P. 273.

274Ibid.

275Ibid. P. 274.

162

reference to it in a special rule).276 The authors, however, give the example of the position reflected in Item 85 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 25 of June 23, 2015, according to which

«…transactions that violate the fundamental principles of Russian law and order, the principles of social, political and economic organization of society and its moral principles may be qualified as transactions made for this purpose. These transactions may include, in particular, transactions aimed at the production and disposal of objects limited in the civil turnover (relevant types of weapons, ammunition, drugs, other products with properties dangerous to the life and health of citizens, etc.); transactions aimed at the production and dissemination of literature and other products that promote war or ethnic, racial or religious enmity; transactions aimed at the production or sale of forged documents and securities; and transactions that violate the foundations of relations between parents and children».277

The authors of the commentary conclude that this seems to mean a departure from the first and a transition to the third interpretation of “antisocial transactions”.278

Unfortunately, at the time of writing there were no clear examples of court decisions related to Article 169 of the RF CC, in which, according to the authors of the comment under consideration, “an intuitively determined critical level of ethical unbearableness of the transaction” and in which “a blatant, ‘shocking to conscience’ contradiction of the transaction to the most basic notions of morality” would be clearly traced. The court decisions available in the reference legal systems at the moment are focused on situations in which the contradiction to the fundamentals of law and order and morality (at the same

276The authors mention the following court act: On some issues of dispute resolution practice related to the application of Article 169 of the Civil Code of the Russian Federation [Electronic resource]: Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 10.04.2008 No. 22. – Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019).

277See: On the application by the courts of certain provisions of Section I of Part 1 of the Civil Code of the Russian Federation [Electronic resource]: Resolution of the Plenum of the Supreme Court of the Russian Federation of 23.06.2015 No.

25.– Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019).

278Transactions, Representation, Limitation of Claims: Article–by–Article Commentary on Articles 153 – 208 of the Civil Code of the Russian Federation. P. 276.