CC BY
40DOI 10.24411 /2076-1503-2020-10803 MAKHMADOVA Zarina Hasanovna
Master's student at the Faculty of Law of the Financial University under theGovernment of the Russian Federation
e-mail: mail@law-books.ru
BAGREEVA Elena Gennadievna,
Doctor of Law, prof., professor of the Financial University under the
Government of the Russian Federation e-mail: mail@law-books.ru
THE RATIO OF LAW AND MORALITY DURING THE COVID-19 PANDEMIC
Annotation. In the article is considered the origins of morality and law, as well as the problem of their relationship. Different opinions of scientists-philosophers who have studied the issue of the relationship between law and morality, as well as the primacy of these normative systems are analyzed. The work also raises the question of consolidating and implementing the norms of morality and law during the COVID-19 pandemic.
Key words: morality, law, legal regulation, pandemic, COVID-19 virus.
The question of the relationship and interaction of law and morality as the two main ways of regulating human behavior is one of the most difficult in the theory and philosophy of law. The question of the relationship between law and morality was raised in the papers of the thinkers of Ancient Greece and Ancient Rome, but it was developed in the Middle Ages, during the development of Christianity. Studying the problem of the relationship between law and morality, the main question arises: what is more primary, which system plays a more significant role in the life of a person and society? The ratio of law and morality is the subject of endless discussions at all times and eras.
According to A.A. Huseynov, «the measure of the discrepancy between law and morality is a variable quantity that changes from era to era, from people to people, from generation to generation, from state to state».1 S.S. Alekseev wrote that the spiritual significance of morality consists in the formation of high moral values and ideals. Law is affirmed by morality, while morality does not replace law, does not become a higher and more significant criterion than law when assessing people's behavior, but acts as a spiritual factor, raises objective law, gives it not only regulatory, but also the highest significance.2
The outstanding Russian philosopher I.A. Mikhailovsky in his work «Essays on the Philosophy of Law» considered the problems of the relationship
1 Huseynov A.A. Morality and law: the line of demarcation // Lex Russika. 2018. № 8. URL: ps:// cyberleninka.nj/artide/v/moral-i-pravo-liniya-razgranicheniya.
2 Alekseev S.S. The most sacred thing that God has on Earth: Immanuel Kant and problems of law in the modern era / S.S. Alekseev. M.: Status. 1998. C. 135.
between law and morality and reduced this issue to four positions:
1. Between morality and law there is no difference in content. That is, any moral norm can be clothed in a legal form and become a rule of law. But whether the norms of morality will also be enshrined in the legal form depends on the goals and objectives that the state sets when adopting this or that rule of law.
2. Law and morality are autonomous regulators. Thus, the author pointed out that the formation of law and morality has different sources, that is, law and morality have nothing in common.
3. Law and morality are related to each other normative systems. Right there is a minimum of morality, these are standards that allows society to be stable and sustainable.
4. Law and morality are different in nature. Law in this case acts as a regulator of the external behavior of people, where coercion is a guarantee of adherence to the norms of law. As for morality, its norms are addressed to the inner world of a person, requiring inner devotion3. Other prominent Russian scientists-philosophers also discussed the relationship between law and morality. Russian lawyer B.N Chicherin was a supporter of the differentiation of morality and law and saw them as two independent principles having one common source - the human personality. In this case, law did not act as the lowest level of morality, but was an independent beginning, having its own roots in the spiritual needs of a person.4 The other authors con-
3 Mikhailovsky I. V. Essays on the philosophy of law, Vol. 1 Tomsk: V. M. Posokhin, 1914.
4 Chicherin B.N. Philosophy of law / B.N. Chicherin. M.: Thought. 1990. C.334.
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sidered morality and law to be completely different social phenomena.1
The authors are supporters of the concept that law and morality are related normative systems that have common historical roots, where law is the minimum of morality, the observance of which leads to the stability of society.
In the process of development of the society gradually evolved and strengthened the view that the right - this is the most effective regulator of social relations, which is able to protect human rights and freedoms.
Today it is difficult to find that area of public relations in which the law would not be a regulator. If only yesterday the regulation of relations between parents and children was the subject of a dispute, today this issue has been resolved in favor of the law.
Thus, the question of the complementary relationship between law and morality is indisputable, since it is morality that requires the protection of a person and his rights, and their observance is identified with good and morality.
It is worth noting that most of the norms of Christian morality in the 16-17 centuries formed the basis of the European concept of human rights. These norms were reflected in the theory of natural, inalienable rights of the individual, and received legal confirmation in the Declaration of the Rights of Man and Citizen of France in 1789. For the first time this Declaration was confirmed that the purpose of government is to protect the inalienable, natural rights of each person, such as equality, ownership, security of person, the right to political participation, freedom of conscience, speech.
Since then, the norms of morality have found their reflection in the inalienable human rights, have received their further development and have been enshrined in the laws of the countries of Europe, America and other. In Russia, these norms were reflected Constitution of the Russian Federation in the 1993.
As Rasskazov L.P. pointed in his work «Natural Human Rights» that "the consolidation of natural human rights in normative legal acts does not mean their identification with positive human rights.
In this case, natural rights acquire only the form of positive law, but do not become completely such, since positive law can cease to exist by a volitional state act, and natural law is realized regardless of the discretion of state bodies."2
The laws that are adopted by the authorized government bodies due to various conditions are
imperfect. Many of them eventually become obsolete, loses its previous meaning, which leads to conflicts between the fixed human rights and public needs. As a result, positive rights are improved thanks to natural ones. Thus, natural law is the phenomenon where law and morality are most closely intertwined.
The law, which expresses the ideals of justice, equality and freedom, approaches morality, since they have a common value basis and act as a regulator of social relations. Law is focused on a system of formal equality, justice, and morality - on the ideals of good and evil, honor and dignity.
Same time the norms of morality, which are the standard of fair relationships between people in society, are consolidated in the norms of national and international law and constitute a potential reserve for the development of positive rights.
The norms of morality correspond to the norms that are enshrined in the Constitution of the Russian Federation.3 For example, moral ideas about justice were enshrined in article 49 of the Constitution, which says about the presumption of innocence, that is, everyone accused of committing a crime is considered innocent until his guilt is proven and established by a court verdict that has entered into legal force. Thus, the morality of respect for human dignity is reflected in Article 21 of the Constitution, which states that the dignity of the person protected by the state and nothing can not be the basis for its derogation. No one should be subjected to torture, violence, other cruel or degrading treatment or punishment. The norm, which is enshrined in this article, is reflected in such rights as the right to life, liberty and security of person; protection of honor and good name; inviolability of the home.
Moral and moral ideas about the human right to a dignified existence were enshrined in the norms of the law on motherhood and childhood, every person is guaranteed social security, the family is under the protection of the state; everyone has the right to health protection and medical assistance, etc.
The religious idea of the freedom of the individual found its place in Article 17 of the Constitution, according to which the exercise of human rights and freedoms should not violate the rights and freedoms of others.
Thus, constitutional rights and freedoms of the individual are a deeply moral phenomenon. «They express and implement the moral imperatives of goodness and justice in the language of law».4 Constitutional norms establish a moral standard of external behavior towards other people from the stand-
1 Grafsky V.G. Law and Morality in History: Problems of the Value Approach / State and law. 1998. № 8. C. 114-119.
2 Rasskazov L.P., Uporov I.V. Natural human rights. Spb. 2001. C. 78.
3 Constitution of the Russian Federation (adopted by popular vote on December 12, 1993) // Rossiyskaya Gazeta from December 25, 1993. № 237.
4 Glukhareva L. Human rights in the modern world. M .: Yurist. 2003. C. 26.
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point of goodness, tolerance, duty, and also oblige the state to protect and observe these rights.
Despite the close relationship between the norms of morality and law and their consolidation in the legislation of the Russian Federation, as well as in international law, there are many problems in the legal regulation and in the practice of realizing the rights and freedoms of the individual that need to be further improved. As an example, we will cite the current and vital situation, which was expressed in the restriction of the fundamental rights and freedoms of people during the COVID-19 pandemic.
In connection with the COVID-19 virus, countries around the world have taken certain measures to contain the spread of coronavirus infection and stabilize the situation. The Russian Federation adopted Presidential Decree № 239 of the 2 April, 2020 «On measures to ensure the sanitary and epidemiological well-being of the population in the Russian Federation in connection with the spread of a new coronavirus infection (COVID-19)».1
The purpose of the adoption of this decree is to ensure the sanitary and epidemiological well-being of the population on the territory of the Russian Federation in connection with the spread of the new corona-virus infection (COVID-19). This Decree establishes the need to introduce restrictive measures and other measures, which are expressed in restricting free movement and introducing access control in the constituent entities of the Russian Federation, suspending the activities of organizations, regardless of their organizational and legal form. Also, in connection with the situation that arose, amendments were made to the Criminal Code and the Code of Administrative Offenses, which tighten the liability for violation of quarantine. Article 236 of the Criminal Code of the Russian Federation stipulates that if a violation of sanitary and epidemiological rules entailed, by negligence, a massive illness or poisoning of people, or even created only a threat of this, then the fine can range from 500 to 700 thousand rubles, and imprisonment - up to two years. Before the changes, the article established a fine of up to 80 thousand rubles, and imprisonment up to a year. For violation of the established sanitary and epidemiological rules, which can lead to the death of a person by negligence, a fine can range from 1 million to 2 million rubles, and imprisonment can reach five years. If the violation results in the death of two or more persons, the punishment for this will be in the form of forced labor for
up to five years or imprisonment for up to seven years.2
As for the Code of Administrative Offenses of the Russian Federation, articles were enshrined that established a fine for violating legislation in the field of ensuring the sanitary and epidemiological well-being of the population. The fine for citizens is from 15 to 40 thousand rubles, for officials and individual entrepreneurs - from 15 to 150 thousand rubles, for legal entities - from 200 thousand to 500 thousand rubles. For organizations and individual entrepreneurs, an alternative sanction is provided - the suspension of activities for up to 90 days.
What is most important is the fact that there was a responsibility for the implementation of medicines at inflated prices. For officials, the fine is from 250 to 500 thousand rubles, for individual entrepreneurs and legal entities - twice the amount of excess proceeds from drugs at unlawfully inflated prices for the entire period of such sale, but not more than one year.3
As we can see from the above, during the period of coronavirus infection, amendments were made to certain regulatory legal acts that toughen the punishment for violation of sanitary and epidemiological standards, and also enshrined norms that restrict the free movement of people. Failure to follow these rules of law is liable to a fine or imprisonment.
In this case, the question arises, does not violate the natural rights of citizens, as well as the principle of the need for observance of moral norms and rules in the adoption of legal acts? Given the current situation, the United Nations has prepared a report on the topic: «Protecting human rights in the context of the COVID-19 pandemic». As awareness grows that enacting legal regulations to contain coronavirus infection can threaten human rights around the world, the United Nations is calling on countries to take more concerted action to protect human rights during the pandemic. From the very beginning of the outbreak coronavirus infection by representatives of the United Nations emphasize the importance of protecting the rights of human rights.
In a briefing to the Human Rights Council, UN High Commissioner for Human Rights Michelle Bachelet called on states to take urgent action to prevent further inequality from rising during the COVID-19 pandemic. During her speech, she stressed that European countries have taken unprecedented measures to protect workers' rights and minimize the number of unemployed. She also noted that the Afri-
1 Decree of the President of the Russian Federation of the 2 April 2 2020 N 239 «On measures to ensure the sanitary and epidemiological well-being of the population on the territory of the Russian Federation in connection with the spread of a new coronavirus infection (COVID-19)» // Rossiyskaya Gazeta from 3 April 2020 r. N 72.
2 The Criminal Code of the Russian Federation of June 13, 1996 r. N 63-03 // Collection of legislation of the Russian Federation from June 17 1996 r. N 25. art. 236.
3 Code of the Russian Federation on Administrative Offenses of December 30, 2001 r. N 195-03 // Rossiyskaya Gazeta from December 31. 2001 r. N 256.
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can Development Bank has attracted the world's largest social bonds in the amount of $ 3 billion to help African governments in the field of health.
Below, the authors cite some of the opinions of UN experts aimed at protecting human rights and eliminating inequalities during the COVID-19 pandemic:
- Every person, without exception, has the right to receive vital medical care and responsibility for the provision of those services lies with the government; lack of resources should not be used as an excuse to discriminate against certain patient groups. Everyone has the right to health;
- There is no doubt that all states must make efforts to eliminate the threat of COVID-19, but do not forget that in accordance with the data received from the police, the level of domestic violence will increase. For many children and women, the house can be a place of fear and violence, and with the introduction of quarantine measures and norms that restrict movement, this situation can worsen, therefore states need to work out a mechanism to protect the weaker segments of the population during a pandemic;
- The Independent Expert on the enjoyment of all human rights by older persons highlighted that there were reports of elderly people abandoned in nursing homes or of bodies found in shelters. Such reports are alarming, and this behavior is unacceptable. Despite the current situation, society and the state as a whole should not forget about the norms of morality, despite the urgent and tough measures that have been taken;
- Non-discrimination in relation to people who are in camps or in public places, often living in overcrowded settlements, shelters for emergencies. Governments must do everything possible so that the data segments of the population have access to water, sanitation, personal hygiene, adequate housing and food.
The coronavirus infection (COVID-19) has not only caused a health problem, but has also exposed and exacerbated problems of interpersonal relations. In response to the above concerns, the Office of the United Nations High Commissioner for Human Rights has adopted recommendations aimed at combating the coronavirus, but focused on human rights:
1. health policy should take into account not only the medical aspects of the spread of the virus, but also the human rights and gender implications of such measures;
2. such emergency measures must be taken and implemented legally, and not with the aim of
suppressing the activities of journalists and human rights defenders;
3. measures aimed at introducing self-isolation should take into account the needs of people who rely on the support of others for food, clothing and bathing, especially for the elderly and people with disabilities;
4. It is extremely important to note that tightening border controls should not restrict or impede the movement of people who are forced to flee war or persecution;
5. packages of social protection measures should be provided for those segments of the population that need it in order to mitigate the devastating consequences of the pandemic and acute crises;
6. people deprived of their liberty, including in prisons, immigration centers, are at increased risk of infection and their situation should be considered separately, taking into account the peculiarities of the situation;
7. medical professionals and experts should be able to freely exchange information and experience with each other1.
Making a conclusion, it can be noted that despite the difficult economic, political situation that has arisen in connection with the coronavirus infection (COVID-19), all international organizations, in particular the United Nations, as well as human rights defenders around the world are concerned about the situation that is associated with the violation human rights.
For this, certain recommendations are adopted and published in the field of protecting human rights and freedoms. Undoubtedly, in order to prevent the spread of the virus, the governments of all countries took appropriate measures that were aimed at sanitary and epidemiological protection of the population and were enshrined in special regulatory legal acts. However, when making such restrictive rules, we should not forget the principle of compliance with the
existing law of morality and ethics.
Spisok literatury:
[1] Constitution of the Russian Federation (adopted by popular vote on December 12, 1993) // Rossiyskaya Gazeta from December 25, 1993. № 237.
[2] The Criminal Code of the Russian Federation of June 13, 1996 r. N 63-03 // Collection of legislation of the Russian Federation from June 17 1996 r. N 25. Art. 236.
[3] Code of the Russian Federation on Administrative Offenses of December 30, 2001 r. N 195-03 //
1 www.un.org/sites/un2.un.org/files/un_
comprehensive_response_to_covid19_russian.pdf
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Rossiyskaya Gazeta from December 31, 2001 г. N 256
[4] Decree of the President of the Russian Federation of the 2 April 2 2020 N 239 «On measures to ensure the sanitary and epidemiological well-being of the population on the territory of the Russian Federation in connection with the spread of a new coronavirus infection (COVID-19)» // Rossiyskaya Gazeta from 3 April 2020 г. N 72.
[5] Alekseev S.S. The most sacred thing that God has on Earth: Immanuel Kant and problems of law in the modern era / S.S. Alekseev. М.: Status. 1998. С. 135.
[6] Glukhareva L. Human rights in the modern world. M .: Yurist. 2003. С. 26.
[7] Grafsky V.G. Law and Morality in History: Problems of the Value Approach / State and law. 1998. № 8. C. 114-119.
[8] Huseynov A.A. Morality and law: the line of demarcation // Lex Russika. 2018. № 8. URL: ps:// cyberleninka.ru/article/v/moral-i-pravo-liniya-razgran-icheniya.
[9] Rasskazov L.P., Uporov I.V. Natural human rights. Spb. 2001. C. 78.
[10] Chicherin B.N. Philosophy of law / B.N. Chicherin. M.: Thought. 1990. C.334.
[11] Mikhailovsky I. V. Essays on the philosophy of law, Vol. 1 Tomsk: V. M. Posokhin, 1914.
[12] www.un.org/sites/un2.un.org/files/un_com-prehensive_response_to_covid19_russian.pdf
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