Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.39 N° 70
2021
Recibido el 03/06/2021 Aceptado el 14/06/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
:
Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
L
OIRALITH
M. C
HIRINOS
P
ORTILLO
Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
Nila Leal González
Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
Ri car do Com bel las
An gel Lom bar di
Die ter Nohlen
Al fre do Ra mos Ji mé nez
Go ran Ther born
Frie drich Welsch
Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 39, Nº 70 (2021), 105-118
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Justice: between law and Conscience
DOI: https://doi.org/10.46398/cuestpol.3970.06
Andrey I. Vinogradov *
Maiia E. Pankratova **
Anatoly N. Yashin ***
Natalya Yu. Rasheva ****
Anton V. Emelyanov *****
Oksana P. Chernykh ******
Abstract
From the philosophical perspective article deals with the
correlation between law and consciousness. To address the issue,
ideas from renowned thinkers are used. It specically describes
the experience of addressing the subject in Russian philosophy
from the late nineteenth to the early twentieth century. The
article shows the reasons for preferring law or consciousness in
dierent periods of history and demonstrates the rational nature
of law and the irrational nature of consciousness, indicating that law and
consciousness are not mutually exclusive. It concludes with an attempt to
combine the two concepts in activities of people who must enforce legal
norms. Using the experience of Russian philosophy, which regards the law
as a moral minimum, people are advised to govern their actions not only
by legal rules, but by listening to the voice of their conscience. The authors
suggest understanding conscience as a spiritual and moral human law that
makes it possible to make decisions without being forced or motivated
* Dr. of Philosophy, Professor, Director of the Institute of Social Sciences and Humanities, Murmansk
Arctic State University, 15 Egorov street, Murmansk, 183038, Russia. ORCID ID: https://orcid.
org/0000-0002-7008-1980. Email: andvinogradov00@mail.ru
** PhD in Law, Associate Professor, Head of the Civil and Financial Law Department, Institute of Social
Sciences and Humanities, Murmansk Arctic State University, 15 Egorov street, Murmansk, 183038,
Russia. ORCID ID: https://orcid.org/0000-0001-8281-8727. Email: Pankratova.mayya@gmail.com
*** Doctor of Philosophy, Associate Professor, Head of the Department of Criminal and Administrative
Law, Institute of Social Sciences and Humanities, Murmansk Arctic State University, 15 Egorov street,
Murmansk, 183038, Russia. ORCID ID: https://orcid.org/0000-0003-4262-8894. Email: yashin58@
mail.ru
**** PhD in Law, Associate Professor at the Civil and Financial Law Department, Institute of Social Sciences
and Humanities, Murmansk Arctic State University, 15 Egorov street, Murmansk, 183038, Russia.
ORCID ID: https://orcid.org/0000-0003-0063-9253. Email: Anyta_us@mail.ru
***** Senior Lecturer at the Department of Sports Development, Nosov Magnitogorsk State Technical
University, 38 Lenin Avenue, 455000, Chelyabinsk Region, Magnitogorsk, Russia. ORCID ID: https://
orcid.org/0000-0001-5304-980X. Email: daryatanchuk@mail.ru
****** Ph.D., deputy Director for Scientic and Methodological Work, House of Students «Magnet», 33
Leningradskaya str., 455000, Chelyabinsk Region, Magnitogorsk, Russia. ORCID ID: https://orcid.
org/0000-0002-7508-8049. Email: cherry-100@yandex.ru
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Andrey I. Vinogradov, Maiia E. Pankratova, Anatoly N. Yashin, Natalya Yu. Rasheva, Anton V.
Emelyanov y Oksana P. Chernykh
Justice: between law and Conscience
from the outside, governed by the internal realization of good and evil and
identifying the veracity, justice, and rectitude of an act.
Keywords: philosophy of law; history of philosophy; law and conscience;
justice and morals; conceptual binomials
Justicia: entre la ley y la conciencia
Resumen
Desde la perspectiva losóca artículo trata de la correlación entre
ley y conciencia. Para abordar el tema se utilizan ideas de reconocidos
pensadores. Describe especícamente la experiencia de abordar el tema en
la losofía rusa desde nales del siglo XIX hasta principios del siglo XX. El
artículo muestra las razones para preferir la ley o la conciencia en diferentes
períodos de la historia y demuestra la naturaleza racional de la ley y la
naturaleza irracional de la conciencia, indicando que la ley y la conciencia
no son mutuamente excluyentes. Concluye con un intento de combinar los
dos conceptos en actividades de personas que tienen que hacer cumplir las
normas legales. Utilizando la experiencia de la losofía rusa, que considera
la ley como un mínimo moral, se aconseja a las personas que gobiernen
sus acciones no solo mediante reglas legales, sino escuchando la voz de
su conciencia. Los autores sugieren entender la conciencia como una ley
humana espiritual y moral que hace posible la toma de decisiones sin ser
obligada o motivada desde el exterior, gobernada por la realización interna
del bien y el mal e identicando la veracidad, justicia y rectitud de un acto.
Palabras clave: losofía del derecho; historia de la losofía; derecho y
conciencia; justicia y moral; binomios conceptuales.
Introduction
Philosophers of various eras and civilisations tried to answer the
question of correlation between law and conscience. Losing the link with
moral human nature, the law does not evoke any reaction in the human
heart and becomes useless, if not harmful, for human society. In a sound
society, law and conscience do not contradict but complement each other.
It is no coincidence that modern legal theorists point out that, in a lawful
environment, each person reasonably has both legal and moral duty to obey
the rules because what the law mandates in external behaviour is the same
as what the voice of conscience approves of as moral and just (Sorokin,
2010).
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Relevance of the topic is due to the need to nd a sound basis for justice.
The title reects an eternal dilemma: what should people enforcing the
law be governed by? Technically, the answer is obvious: they have to be
governed by law since their main goal is to enforce it. Yet, it is not that easy
if we try to make sense of it. There are situations where enforcing the law
will be at odds with conscience. For instance, there is a law-enforcement
practice called “plea bargain”, completely legal but morally questionable.
That is why judges, lawyers, prosecutors, police ocers, and other people in
law enforcement are sometimes caught between law and conscience, when
they have to choose between exact law application and clear conscience.
The true correlation between law and conscience is possible to understand
only through the historical and philosophical study of conscience as applied
to justice.
The history of philosophy shows that the true value of the law is exercised
when it is based on moral sense of people, when requirements of the law are
consistent with the voice of conscience within the human being.
1. Correlation of law and morality in history of philosophy
Ancient thinkers believed that legal requirements had to conform to
those of conscience. For example, according to Plato, a legislator was “in
their power to make use in their law-making of two methods, namely,
persuasion and force” (Plato, 1961). The thinker criticises those who only
use the latter. According to him, the law must have a moral mandate apart
from force alone. Aristotle also tried to combine legal and moral categories.
He viewed justice as the basis of law through compassion, which is a moral
feeling: “The equitable man is above all others a man of sympathetic
judgement and identify equity with sympathetic judgement about certain
facts” (Aristotle, 1999: 136).
Cicero preferred unwritten laws that had appeared before any written
law since: “Our lawyers often divide a legal doctrine, which is essentially
simple, into an innite variety of technical distinctions” (Cicerone, 1853:
325). He recurrently mentions the unbreakable link between the idea of
justice and Roman laws (Cicerone, 1853). According to Cicero: “For we
shall have to explain the true nature of moral justice, which must be traced
back the nature of man” (Cicerone, 1853: 63).
Thomas Aquinas “distinguishes two elements in what we should
call “conscience” – the synderesis, or intuitive grasp of rst principles
or standards by which alone moral comparisons can be made and the
conscientia, or process of applying these rst principles in estimating the
rightness and wrongness of particular actions” (Kirk, 1999).
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Justice: between law and Conscience
Before the modern era, all thinkers were united in their understanding
of morals as the basis of law. They considered conscience to be a natural
source of legal regulation. The modern era brought about an idea of separate
existence of law and conscience, independent from each other.
The Christian tradition supported the idea of a divine nature of morality.
Naturally, this standpoint implied a superior position of morality in relation
to law. However, gradual secularisation of human life was a characteristic
of the Renaissance and modern era, with the will of the state becoming the
main foundation of law. The Renaissance and modernity were the eras when
nations took shape, requiring national legislations based on interests of the
state rather than on moral principles. N. Machiavelli stated that politicians
had to do evil for benevolent means: “a prince wishing to keep his state is
very often forced to do evil” (MachiavellI, 1908). According to T. Hobbes,
the law is based on force, with only those appointed by the state having
the right to interpret it: “the interpreters can be none but those, which the
sovereign… shall appoint” (Hobbes, 2010: 141).
A point of view that would later be called legal positivism started to
dominate the ideas on the correlation between law and conscience. This
point of view relieves the lawmaker of the necessity to consider moral
norms when making laws. The lawmaker is left with the only guidance:
rational practicality of the regulations adopted. However, conscience is not
rational. It is guided by intuition rather than logic. Encyclopaedia Britannica
underlines the intuitive nature of conscience: “Conscience usually informed
by acculturation an instruction, is thus generally understood to give
intuitively authoritative judgments regarding the moral quality of single
actions” (Britannica Encyclopaedia, 1990: 44). The positivist thinking
does not accept any phenomena that cannot be unequivocally veried.
Consequently, positivist-leaning philosophers started to promote the
freedom of reason-based law from moral ideas, primarily, from conscience.
These two interrelated factors – the rise of secularisation and promotion
of positivism – resulted in the modern correlation between law and
conscience. Its underlying idea is a separate existence of these two spiritual
areas of human life. In the 20
th
century, that state of aairs seemed quite
normal. The outer human life and social relations were regulated by
universally binding, standardised, and reasonable forms of behaviour
described in the law. The inner life was governed by individual ideas
depending on the way the person was brought up as well as their cultural
and personal background. These ideas are at a signicant disadvantage to
legal norms: they cannot be standardised; they are unwritten and intuitively
perceived by people and therefore unreliable and suspicious. Consequently,
they can be applied exclusively to personal human life.
Current state of aairs
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Now, in the 21
st
century, we are starting to understand that the situation
is not normal. First, it is becoming increasingly popular to think that people
cannot be viewed as exclusively rational beings. It is the ability to have
emotions, feelings, and beliefs that makes people dierent from computers.
People cannot be squeezed into the limits of rationality. In particular, they
can use their conscience to make the right decision in a dicult situation.
It means that conscience has to be taken into account when dealing with
people. Secondly, law without a moral sanction loses its authority, turning
into an external force people have to obey just because it is a force.
However, such law resembles the laws of nature, which also lack a moral
sanction. If an animal eats another one, this action cannot be viewed from
a moral perspective because it is just a manifestation of the natural laws
those animals live by, which cannot be applied to a situation of one person
eating another. In spite of the fact that one of the people has satised the
natural need for food, the act will be condemned by both public law and
moral ideas of the people who have learned about the act. One of the main
characteristics of people is their ability of judgement. People always judge
what they deal with in two ways: formally, from a legal perspective, and
essentially, from the standpoint of their conscience. If, in this judgement,
the form (law) contradicts the substance (conscience), a spiritual discord
appears within the human being.
When people compare law and conscience, we can observe two curious
things:
1) in such a comparison, demands of conscience are the criteria of
judgement, and law the object of it, but not vice versa.
2) it is always conscience that wins, not law.
These phenomena are caused by the fact that conscience is an internal
human conviction about what is good and evil, or, according to Kant, an
“internal court in man” (Kant, 1991), whereas law is nothing but an external
declaration by other people. Consequently, no matter what legal positivists
want, people have always judged the law with their conscience and always
will. We should accept this situation as a manifestation of a normal human
quality and consider it while dealing with problems faced by the people who
enforce the law.
2. Russian philosophy’s experience in solving the problem
Russian philosophy of the late 19
th
and early 20th centuries contains
some fruitful experience of reecting on the problem in question, which can
be very useful for understanding the current state of aairs. It was the time
when a school of scientic positivism formed in Russia. Its representatives
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Justice: between law and Conscience
considered it unnecessary to subject law to moral judgement. They made no
dierence between law as justice and law as a collection of legal norms, its
only source being the will of the state. It resulted in a ery debate between
the positivists and representatives of Russian religious philosophy. A lot of
Russian philosophers of that era were sceptical towards the technicalities
of positivist law, connecting the issue of civil society with the ethnic and
religious specics and culture of Russian spirituality. By the end of the
19th century, criticism of the state and law had become commonplace,
sometimes taking an extreme shape. In particular, the great Russian writer
Leo Tolstoy criticised the state and law from a moral perspective, declaring
an anti-law morality.
Having adopted a lot of Western philosophical ideas on the nature of
conscience, representatives of Russian philosophical thought of the late
19th and early 20th centuries gave a new meaning to those ideas. The
Russian mind was traditionally characterised by a specically ne-tuned,
“conscience-based” perception of reality, which could be proven by the
specic focus on the issue of conscience in Russian religious philosophy.
Aleksei Khomyakov called the state-sanctioned law external law, and
conscience was the internal law. According to his opinion, for conicts to be
resolved and social peace to be maintained, internal social regulations, such
as customs, traditions, and moral norms, should prevail over external laws
(Vinogradov and Yashin, 2018). Khomyakov viewed the state-sanctioned
law as a middle ground, with criminals below it and saints above it, adding
that the external law was more tolerant to crime than pangs of conscience
were (Khomyakov, 1900). Nikolai Lossky considered pangs of conscience
to be the true punishment: “The main form of suering making the most
obvious moral sense is pangs of conscience” (Lossky, 1994). Ivan Ilyin
viewed conscience as the personal moral genius, source of justice, and
“altar of one’s life” (Ilyin, 1993).
However, thoughts on the correlation between law and conscience are
most prominently featured in philosophical works by two Russian thinkers:
Fyodor Dostoyevsky and Vladimir Solovyov.
For instance, Dostoyevsky’s works show the phenomenon of conscience
in its relation to law and explore the pangs of conscience and repentance of
a criminal sinner to the depths that had not been reached by philosophical
and legal thought before. Dostoyevsky “completely rejects the ethics of
pure reason” (Lauth, 1996) and believes that laws of reason cannot hold
people within the limits of state-mandated regulation of social behaviour.
The philosopher reaches “new hidden layers but does not dive deep into the
unconscious but soars to the heights of consciousness” (Hobbes, 2010: 23).
So, according to Dostoyevsky, justice invariably contains the idea of a court
of one’s conscience as the most just court, without imperative instructions
and external will: “The pain of his heart alone, before any punishment, will
kill him with its torment. He will judge himself for his crime more ruthlessly,
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more mercilessly than the strictest law” (Dostoevsky, 1972: 102). The idea
of a court of one’s own makes the state-administered justice pointless.
Whichever of the ideas Dostoyevsky substantiates in his philosophy,
the conict between nature and reason, heart and mind manifest itself.
The ethics of the sense is always at the forefront, and the main sense is
conscience, “the organ that perceives God” (Berdyaev, 1993: 14), the
regulator of ethics that serves as a wake-up call for the moral nature of
every person, including a criminal: “Conscience is by itself repentance”,
wrote Dostoevsky (Dostoevsky, 1976). Pangs of conscience and suering
punish the evil and calm wicked passions of people. Only through suering,
as a kind of an Orthodox Christian purgatory, will a previously-unknown
ethical and moral existence lled with truth revealed to the criminal sinner.
With the character of Dmitry in The Brothers Karamazov, Dostoyevsky
demonstrated an example of how a spiritually driven person should perceive
sin. Technically and legally, Dmitry’s sentence is unjust (it was not him who
killed the father), but Dmitry himself sees it as higher justice because he
wished death upon his father, and it is a grave sin, a crime in Orthodox
Christian ethics. Dmitry therefore sees the twenty years of hard labour
as his duty; as a true believer, he realises that it is only through suering
that he can atone for his sin: “…I want to suer, and by suering shall I be
purged! Well, maybe I will, gentlemen, right?” (Dostoevsky, 1976: 46).
Dostoyevsky believed that formal and soulless legal regulations that do
not account for conscience and moral motives of an act lead to unjust verdicts
in practice (Dostoevsky, 2004). The writer does not doubt the necessity of
legal norms; he merely explains the gap between the legislative authority
(government morality) and the spiritual component of personality, calling
for “humanising” the legal norms, which is fairly consistent with the spirit
of Russian philosophy of law.
The writer also emphasises the issue of conscience in Crime and
Punishment, where the author basically creates a situation that focuses the
whole plot on the issue of conscience. The point of the story is to lead the
character to atonement through “worldly law”, “human nature”, and “God’s
truth”. The latter is exclusively connected with conscience. Raskolnikov’s
atonement required him to judge himself, fully accept responsibility for his
crimes, and to understand his deeds from the perspective of conscience.
According to the author, conscience is a sense of moral responsibility for
one’s actions to others, an ability to recognise the moral nature of one’s
behaviour deep inside one’s soul. Conscience implies an absolute moral law
of taking good from evil.
In the Christian tradition, every person has a conscience that is both
an internal witness and a prosecutor thought to be “God’s eye and voice”.
Since God is all-knowing and omnipresent, the judgement by conscience is
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Emelyanov y Oksana P. Chernykh
Justice: between law and Conscience
inescapable. For Dostoyevsky, Christ is not an abstract ideal, not an intrinsic
idea of idealist philosophy, but a historical fact. Conscience is understood
as the immaculate way of living Christ had on Earth. For Dostoyevsky,
the function of conscience is to lead Raskolnikov to repentance, partially
through fear, so as to save him. It is conscience that leads Raskolnikov
to admitting: “…was it a little old woman I killed? It was me, not the old
woman who I killed. I just did myself in, forever…” (Dostoevsky, 1973: 69).
The issue of conscience, guilt, and shame was elaborated in depth in the
works of Vladimir Solovyov. He identied three human needs: to live, to
learn about life, and to correct it. Satisfying the former makes people similar
to other living beings, and knowledge of life leads people to understanding
the sinfulness of natural ways and overcoming it: “Not only does man
understand, with his mind, the inadequacy of the natural way as leading
to death and nothingness, he also realises in his conscience that this way is
sinful” (Solovyov, 1999: 65). The philosopher concludes that people should
live their lives obeying their sense of duty and conscience.
Russian culture, where, in 19th and early 20th centuries, the communal
and ethics-based nature of all aspects of life, undivided truth, and human-
centeredness were main ideas, specically focuses on people, their moral
choice, and ability to improve themselves and society. Works of Russian
philosophers show a change in understanding conscience: from a focus
on a social fear in the presence of others to a deeper understanding of it
as a spiritual core of a personality expressed in the feelings of guilt and
repentance.
Law carries the main burden of protecting society from harmful and
dangerous deeds of persons who disregard rights and interests of other
people and society as a whole. Consequently, law, where state coercion
is concentrated and monopolised, restrains and punishes crime against
public morals. “…The existence of a society depends on safety for all rather
than on perfection of some”, wrote Solovyov, “While not secured by itself
with moral law that does not exist for people with prevailing antisocial
instincts, this safety is guarded by the coercive law that applies to them as
well” (Solovyov, 1998: 39).
Solovyov’s philosophy formulates the issue of the correlation between
law and morality this way: can law be immoral and morality anti-legal?
“The interrelation between the moral and legal,” he writes, “is one of the
core issues of practical philosophy” (Solovyov, 1988: 446). For Solovyov,
law is “a certain minimum of morality” (Solovyov, 1988: 446) and it must be
correlated with moral ideas and assumptions, the philosopher believes. He
therefore concludes that a crime is not merely a technical breach of a legal
norm but also a violation of moral Truth that becomes violated in relation
to both the victim and the criminal. Violating moral and legal principles,
the criminal harms his or her own personality, rejecting God’s grace.
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In Solovyov’s moral philosophy, human sense takes the shape of moral
law. Solovyov legitimises sense as a moral instance. For him, sense is
not simply a way of cognition of the world, but also a tool of its mortal
transformation. According to Solovyov, good cannot be senseless, and
the sense of conscience therefore requires a proper attitude towards any
life situation rather than a manifestation of “pure will”. The philosopher
believes that acting in accordance with one’s conscience is sucient for a
moral act.
In its meaning, Soloviev’s idea of “conscience” is closest to the Kantian
Picht (duty) since the German word Gewissen (conscience) is, for Kant,
merely a formal notion that does not correspond to what people should
do and therefore is not a moral law. For him, “practical reason” alone is
responsible for moral decisions. Conscience may require moral actions
from a person, but it cannot justify them. Moral justication of such actions
is beyond its scope. It is solely a goal of “practical” reason. For Kant,
conscience is therefore a moral sense but not a moral law. At the same time,
it is the force that makes people observe the moral law (Kant, 1990). That is
the reason why Solovyov’s idea of conscience is comparable to Kant’s idea
of duty.
Duty and conscience are related but they are not the same. What they
share is the fact that both the sense of conscience and idea of duty include
an absolute or unconditional principle. For example, Solovyov thinks that
“the moral law is based both in us and independently from us. To put it
otherwise, this unconditional law implies an absolute legislator” (Solovyov,
1988).
V. S. Solovyov was profoundly right when he called shame and conscience
the primary basis of morality, the senses that serve as a foundation of
human existence and ground zero of humanity in people. The “high” senses
make people people, and losing them, they lose everything that makes them
human.
The notion of conscience is a sense of a sentient being or a sensuous
reason. Neither sense without sensibility nor sensibility without sense is
moral and therefore human. In the notion of conscience, people overcome
both the senselessness of their reason and unreasonableness of their senses
and achieve a convergence of the objective basis of morality with the
subjective one, i.e. discover and actualise things divine within themselves.
Conscience as an internal spiritual and moral law makes it possible to
respect and observe the law without external coercion. The law is the
external rational coercion whereas conscience is the internal irrational
motivation.
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Justice: between law and Conscience
3. Practical experience in addressing the issue
It is not surprising that Russian thinkers paid so much attention to the
correlation between law and conscience. Historically, the very idea of a
Russian system of justice was based on understanding conscience, truth,
and fairness. From the ancient times, people in Russia understood the
word “law” as moral and religious commandments rather than a legal act.
In Russian legal consciousness, true justice can only have a sacral meaning.
The government understood that as well; it is no coincidence that in the
late 18
th
century Catherine II created the Court of Conscience in Russia,
and the judicial reform of the second half of the 19th century kept the
practice of peasant justice based on the traditional customary law. For
example, the law of the Russian Empire let peasants instead of litigation
in volost courts, refer by mutual agreement to arbitration by conscience in
any form possible. Justice “by conscience” may be justied when verdicts
and sentences are not awless from the positivist standpoint. Here, it is
important to reach a compromise between law and conscience, but the
main legitimacy criterion for these judicial decisions is repentance of the
criminal because the ideas of mercy and absolution are also fundamental
for the philosophy of Russian justice. It is important that the judge, jury,
and victim see, in the repenting convict, a miserable person who made a
false step by fate or own sinful choice rather than a hopeless criminal. In
this case, conscience helps some people to understand their sin and other
people to show mercy by conviction or acquittal.
In the second half of the 19th century Russia had both interesting
theoretical ideas on the correlation between law and conscience and
practical experience in combining them. We mean professional legal
scholars who created a truly democratic justice system. Their ideas, in
particular, on morality and conscience in administering justice, are relevant
and necessary to this day.
Anatoly Koni (1844–1927), a prominent Russian legal thinker of the
late 19th and early 20th centuries, theoretically proved and practically
exemplied (he presided over the Saint Petersburg district court) what
true justice should be. He would put moral values, primarily conscience,
on top of his hierarchy of values. His book Moral Principles in Criminal
Proceedings should be a handbook for a judge. In the book, Koni, a jurist
and philosopher, described a paradigm of justice, and there is no doubt
that we would have a dierent system of justice if we followed the spirit of
the guidance created by the jurist and thinker. In particular, he emphasised
that “… a guilty verdict is a result of complex internal work by the judge who
is limited, in determining the strength of evidence, by nothing but guidance
from reason and a voice of conscience” (Koni, 1967). He also writes there
that “what is called ‘judge’s conscience’ is a force that supports the judge
and brings a special, sublime meaning to his trade… He must reckon with
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Vol. 39 Nº 70 (2021): 105-118
its voice lest he bring a profound discord upon his soul” (Koni, 1967). In
another analytical work, Fathers and Sons of Judicial Reform, he also
points out the decisive importance of conscience in justice: “In no other
trade does one need to stir one’s conscience so often, at times calling it to
judgement, at times demanding instructions from it, at times searching for
support in it alone” (Koni, 1914).
Fyodor Plevako (1842–1908), a contemporary of Anatoly Koni and
prominent lawyer, built his defence in court both strictly in line with the
law and in accordance with conscience. It was “by conscience” when a case
was closed against his client, a priest who had violated the criminal law but
repented. F. N. Plevako’s address to the court was short: “Dear members of
jury! …Before you sit a man who has been granting you absolution of your
sins at confession. Now he is waiting for you to say whether you will absolve
him of his sins” (Plevako, 1909). The priest was acquitted by jury verdict.
The case showed the true nature of justice when conscience became the
higher judge alongside a strict law.
The current Russian law obliges a judge, in administering justice, to apply
law but also be guided by conscience (Article 17 of the Criminal Procedure
Code of the Russian Federation). Undoubtedly, conscience enriches the law
and lls it with new substance, determining its meaning. Deciding, a judge
evaluates both the legal content and moral essence of facts.
Conclusions
Concluding our reection on the issue of the correlation between law
and conscience, we can state that there is a lot of theoretical and practical
experience of addressing it. In spite of that, the issue is far from being
resolved. A lot of thinkers have tried to dene conscience, but we have
to state that there is still no commonly accepted denition of this notion.
Probably, it is an impossible task. In our view, the reason for this is in
the irrational and unveriable nature of the notion. Even the rational
denitions of conscience contain irrational characteristics. For example,
Vladimir Dal dened conscience as “moral consciousness; a moral feeling
or sense in a person; intrinsic understanding of good and evil; a secret place
in the soul reecting approval or condemnation of every act; the ability to
recognise the quality of an act; a sense that attracts the truth and kindness
and repels lies and wickedness; an unconditional love of things good and
true; an inborn truth, in various degree of development” (Dal, 1882). V. Dal
also directly connects justice with conscience: a just court, a just verdict, a
decision by law, by conscience, or the truth.
We suggest understanding conscience as a human spiritual and moral
law that makes it possible to make decisions without being compelled or
116
Andrey I. Vinogradov, Maiia E. Pankratova, Anatoly N. Yashin, Natalya Yu. Rasheva, Anton V.
Emelyanov y Oksana P. Chernykh
Justice: between law and Conscience
motivated from the outside, governed by internal realisation of good and
evil and by identifying the verity, fairness, and righteousness of an act. This
denition implies relativity of justice because it is administered by awed
people with their own moral assumptions and understanding of conscience.
It means that every person has to solve the issue in question on their own.
Nobody can formulate any universal guidelines on the “correct” use of
conscience in legal practice. They can only rely on experience in reection
and actions of others, but everyone chooses independently what experience,
of what people, and to what degree they will eventually use.
It is a challenging task: the person has to combine the rational law with
the irrational conscience. Modern people are used to computers. They
are used to trusting the machine with making a lot of decisions for them,
that is why, choosing between law and conscience, they mostly prefer the
law that ts into a machine algorithm. Yet, they have to remember that
machine-like thinking creates machine-like decisions and machine-like
actions. Human nature is richer than that. It is not limited to pre-dened
algorithms.
Using the experience of Russian philosophy, which views law as a
minimum of morality, we can give advice to people enforcing the law in
practice. The advice is not to be guided by legal norms alone but to listen to
the voice conscience as well. Being included in moral norms, the legal norms
are guaranteed to be observed, but there will also appear an opportunity to
combine administering justice with making the world a better place.
Conict of Interests
The authors conrm that the data provided does not contain any conict
of interests
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Esta revista fue editada en formato digital y publicada
en octubre de 2021, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.39 Nº Especial
