The Theory of Intersection of Law and Morality in Works by J. V. Mikhailovskiy

Abstract

The article analyzes the original concept of the intersection of law and morality in the works by Joseph Vikentievich Mikhailovsky (1868-1921), a well–known Russian jurist, professor at the Imperial Tomsk University. I. V. Mikhailovsky did not share a single doctrine comparing law and morality in the field of social regulation wide-spread in legal science (In particular: the theory of identification of law and morality, the theory of differentiation of law and morality, the theory of law as part of morality). The article proves that V. I. Mikhailovsky proposed a new approach to the problem of the correlation of law and morality. Mikhailovsky came to the conclusion about the existence of absolute principles of morality, which have the characteristics of primordiality, eternity and immutability, which did not exclude personal subjective views on morality and the existence of public morality as the embodiment of absolute principles understood by society in one way or another. He believed that the legal, moral and religious regulatory systems, being independent (mismatched, but overlapping), are manifestations of the highest ethical order. Law without moral content is a form without content, meaning and value. The law is designed to regulate human freedom in the external sphere; to determine the limits and spheres of power; to strive for external results. Morality is designed to determine the limits of inner freedom, regulate a person’s relationship with the Absolute, and strive for inner transformation. Law and morality, he believed, serve the Good as a single system of absolute rational and ethical principles. Mikhailovskiy considered the mutual influence of law and morality to be unconditional, and considered the principles of their interaction, on the one hand, the inadmissibility of anti-moral legal prescriptions; and, on the other, the unacceptability of prescriptions for moral acts.