Before including the term ‘good practice’ in the code, it would be worth conducting a comprehensive public review
The draft of the new Civil Code introduces the term ‘good morals’, which the authors define as a set of moral norms and standards of conduct. However, the text does not explain the origins of these concepts.
I just can’t shake this sense of decency.
I want to make my own notes in the margins of the new Civil Code.
We first heard the term ‘good manners’ from the drafters of the new Civil Code. According to their concept, it is a set of moral norms and principles, standards of ethical behaviour, and socially accepted notions of proper conduct that have become established in society. Consequently, behaviour that does not conform to good conduct will have legal consequences.
The idea itself sounds noble. The law, they say, does not exhaust everything a person ought or ought not to do: above the letter of the law stand ‘generally accepted notions of propriety’. And when two parties are in dispute in court, the judge takes up the yardstick of ‘public morality’ formed within a narrow circle of interested parties and measures the behaviour of the parties against it.
However, this is where a question arises which the authors of the code do not seem to have even attempted to answer: when exactly, and at what precise point in Ukraine’s history, did these benchmark notions—which are now proposed to be applied as a legal standard—take shape in our society? Let us try to grasp the ungraspable.
Perhaps good conduct was formed and is being formed in the corridors of power right now — amidst the clamour of the ‘Mindichgate’ tapes? In the audio recordings, where respectable people discuss kickbacks, schemes and shares, we were presumably meant to catch the voice of public morality. Then all that remains is to clarify: in which exact remark is it encoded.
Or perhaps it was being hammered out over those seven years while the code itself was being drafted — in the quiet of academic offices, alongside the war, corruption scandals and the ‘not the right time’ era? I wonder if the authors cross-checked their wording against the news feed.
Stefanchuk says that the Civil Code is the result of seven years’ work. So is it likely that decency matured during the ‘era of lies’ under the current president’s predecessor? That very era — ‘what the hell are you missing, you idiot, in terms of reforms?’.
Or earlier — during the reign of the ‘convict’ whom the people decided to ‘get rid of’? Back then, the benchmark for decent behaviour was surely a motorcade with flashing lights, a mansion in Mezhyhiria and an ostrich farm as a private stress reliever.
And even earlier — during the ‘Orange Revolution’, when ‘dear friends’ took their seats, and the hands of one of the leaders ‘stole nothing’. Perhaps decency is a mutual guarantee of such very hands?
Or let’s go back even further — to the nineties, to the Kuchma era, when young men in crimson jackets and former Komsomol members divided up factories, mines and steamships. An era when the word ‘oligarch’ first became a profession. ‘Showdowns’ and ‘shootouts’ became a form of communication. That is, evidently, where the standard notions of what is proper were forged.
Let’s move on. To the era of space and nuclear power stations, to the collective farms, where labour for ‘rations’ shaped, it seems, precisely that high standard of ethics which will now be cited in court rulings.
To a time when ‘getting hold of’ meant more than ‘buying’. Back then, it wasn’t judges and prosecutors who settled matters, but ‘the foreman, the store manager, the shop director’.
Let’s move on. To Stalinism — an era where decency presumably meant writing a denunciation of your neighbour in good time, before he wrote one about you.
To the Holodomor — when the model behaviour was to survive oneself and not ask where the bread had gone. To the ‘ruins’, where ethical standards were dictated by the Moscow governor, the Polish lord, or the Turkish pasha — each in turn and according to their own code.
I have just one question: when exactly did the honourable Mr Stefanchuk’s sense of propriety take shape, and from whom exactly — from those whose bread was taken away, or from those who took it away? From the dispossessed — or from those who dispossessed them?
The drafters of the code seem to proceed from the comfortable assumption that there exists some sort of invisible ‘society’ in which ‘generally accepted notions of what is proper’ have already taken root — and all that remains for us is to read them. But the history of Ukraine in the 20th and 21st centuries is, above all, a history of the rupture of moral traditions. Each generation lived by different rules, for otherwise it had no chance of survival. And each generation silently accepted the rules laid down by those in power.
Today, that power lies with Getmantsev, Milovanov, Pyshny, Mindich (there are many like them) and, of course, Stefanchuk. Soldiers’ pay is 20,000, the subsistence minimum for millions of pensioners is 2,500, a reserve soldier receives 840 UAH a month, and IDPs receive zero. Meanwhile, salaries for state managers are 100–200,000, for judges 200–300,000, and for the top brass of state banks and state-owned enterprises a million hryvnias a month. The gap in income between those who allocate the budgets and those who depend on them is over 100-fold!
Hence the paradox. If we take an honest look at our history, we must admit: our ‘decency’ is often the morality of the victor, the morality of the conqueror. That of the one who took the bread, not the one from whom it was taken. That of the one who ended up on the tapes, not the one who listens to them.
And when today the legislator says: ‘We will measure your behaviour by decency’, it is worth asking: whose decency exactly do you mean? The decency of the authorities in 1933? 1937? 1991? 2004? 2014? Or perhaps the one that has emerged over the last seven years of drafting the code itself?
I am not opposed to high salaries for government officials, just as I am not opposed to the very idea of moral standards in law. But I want a clear salary scale where a minister receives no more than 10 times the minimum subsistence level, as in Poland, as in the Baltic states, as in Europe or the United States! In other words, it should be fair. And the subsistence minimum should correspond to the actual figure — 7,500 UAH, as set by the Ministry of Social Protection — rather than the bogus 2,500 UAH allocated per pensioner by the Minister of Finance! And now the authorities are pushing through laws on the confiscation of property from debtors whom they themselves have created!
All major legal systems sooner or later recognise that the law cannot exist on its own, without an ethical foundation. The problem lies elsewhere: one cannot invoke ‘generally accepted notions’ when society has not had an honest conversation about its own history. We cannot simply take ‘public morality’ off the shelf as a ready-made measuring tool if we have never established who exactly, in whose interests, and with what materials that shelf was stocked.
Perhaps, before writing the word ‘good customs’ into the code, we should conduct a major public audit: exactly which customs do we consider ‘good’ — and why. Otherwise, we risk ending up with a legal category that comfortably accommodates both the drafters of the code and their opponents, the protagonists of ‘Mindichgate’ and their investigators — each with their own ‘universally recognised’ truth.
And that is no longer good custom. It is simply the familiar criminal ‘concepts’ known to all. Only in a new, civil-code guise.
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