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Transportation Research Procedia 68 (2023) 347–356

XIII International Conference on Transport Infrastructure: Territory Development and

Sustainability

Problems of Application of Certain Concepts in the Field of

Maritime Transportation
Yu. A. Abravitovaa *, D. S. Khairusovb, N. A. Lipskyb
a
Admiral Makarov State University of Maritime and Inland Shipping, St. Petersburg, Russia
b
Institute of Humanity Sciences of the Higher School of Jurisprudence and Forensic Technical Expertise of Peter the Great St. Petersburg
Polytechnic University, St. Petersburg, Russia

Abstract

The article discusses a number of issues related to the concept of evaluative concepts to determine the advantages and problems of
their use in Russian legislation. The purpose of the study is to comprehend the legal essence of the category of "evaluative concepts"
in the modern realities of law enforcement, to consider the place of evaluative concepts in both the civil doctrine and in public
branches of law, to specify the evaluative concept of "good faith" in the field of shipping. The authors concluded that the increase
in the number of evaluative concepts used in legislation is inevitable, among other factors, they cause the current trend towards
more complex laws. The solution to the problem of incorrect use of the possibilities of judicial discretion in the interpretation of
evaluative concepts lies not so much in the field of jurisprudence as in morality, morality and educational technologies.
© 2023 The Authors. Published by Elsevier BV.
© 2023 The Authors. Published by ELSEVIER B.V.
This is an
This is an open access article
open access article under
under the
the CC
CC BY-NC-ND license (https://creativecommons.org/licenses/by-nc-nd/4.0)
BY-NC-ND license (https://creativecommons.org/licenses/by-nc-nd/4.0)
Peer-review underresponsibility
Peer-review under responsibility of the
of the scientific
scientific committee
committee of theof the Transport
Transport Infrastructure:
Infrastructure: Territory Development
Territory Development Sustainability
and Sustainability
Keywords: Valuation concepts; fairness; good faith; judicial discretion; marine insurance; sea freight.

1. Introduction

On the one hand, the law should be generalized (abstract), serving as a guide for the next levels of lawmaking and
social life, on the other hand, it should be specific and concise. There is an irreducible conflict between the abstract
and the concrete in positive law. The evolution of social relations does not allow the legislator to take into account all
the details of the changing social reality in legal norms, therefore, in the legislative process, such a method of legal

* Corresponding author. Tel.: +7-812-748-97-12.

E-mail address: abravitova@yandex.ru

2352-1465 © 2023 The Authors. Published by Elsevier BV.

This is an open access article under the CC BY-NC-ND license (https://creativecommons.org/licenses/by-nc-nd/4.0)
Peer-review under responsibility of the scientific committee of the Transport Infrastructure: Territory Development and
Sustainability

2352-1465 © 2023 The Authors. Published by ELSEVIER B.V.

This is an open access article under the CC BY-NC-ND license (https://creativecommons.org/licenses/by-nc-nd/4.0)
Peer-review under responsibility of the scientific committee of the Transport Infrastructure: Territory Development Sustainability
10.1016/j.trpro.2023.02.047
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2 Author name / Transportation Research Procedia 00 (2023) 000–000

technique as the formulation and consolidation of situations that are covered by the content of a certain evaluative
concept is actively used.
The Constitutional Court of the Russian Federation consistently adheres to the position on the admissibility of
using evaluative concepts (categories) in the law, which allow the effective application of a legal norm constructed
through the use of such a concept to an unlimited number of specific legal situations (determinations of April 23, 2015
No. 867-O, dated May 26, 2016 No. 1142-O, February 28, 2019 No. 571-O, etc.).
No legislation can avoid the inclusion of evaluative concepts in the legal norms, their multiplicity and diversity
raises the question of the need for a balanced approach to their use by the legislator, the need to ensure a balance
between the strictly formal and relatively certain in legal norms.
The purpose of this work is to comprehend the legal essence of the category of "evaluative concepts", which seems
significant for the development of legislative techniques and law enforcement practice, as well as to specify and
practice the application of the evaluative concept of "good faith" in the field of shipping.
In preparing this study, the authors found that systematic, comprehensive studies of the concept of evaluative
concepts are published mainly by Russian-speaking authors, in particular, T.V. Kashanina (1974), R.O. Opalev
(2008), M.F. Lukyanenko (2010), S.P. Bogdanovich (2012), A.S. Ryasina (2015). D.A. Garaymovich, V.V.
Ignatenko, T.N. Levina, A.V. Mironov, V.V. Pitetsky, E.A. Frolov, and others. In the English-language literature,
attention is focused on understanding the meaning of individual evaluative concepts, in particular, conscientiousness,
justice.

2. Methods and Materials

The general method of dialectical materialism was chosen as the basic research method. Such general scientific
methods were used as analysis, in which the described phenomenon is decomposed into signs and properties, with the
aim of studying it more specifically, synthesis, designed to combine the individual elements of the phenomenon under
study into a single whole for a more detailed study, and the deduction method, which allows drawing conclusions
about certain or other phenomena, based on data on a large number of their particular features. Available court
decisions were studied (a system search was carried out using the electronic resources of the websites
http://kad.arbitr.ru/ and https://sudact.ru/), norms of domestic and international legislation, scientific publications both
in the field of jurisprudence and related Sciences.

3. Results and Discussion

3.1. Theoretical Aspects of "Evaluative Concepts (Categories)"

The beginning of the formation of the "evaluative concepts (categories)" in Soviet legal science is associated with
the name of Professor S.I. Vilnyansky, who in 1956 introduced the definition of "evaluative concept" into scientific
circulation. The term was finally and firmly entrenched in legal science in 1963, after the publication of the work of
V.N. Kudryavtsev "Theoretical foundations for the qualification of crimes". However, attempts to comprehend the
mechanisms of the most effective application in the law of terms that are not explained by the legislator, but generalize
the phenomena and processes of legal reality, have been made before. As V.G. Golubtsov, until the second half of the
twentieth century. in the doctrine of civil law, such a specific legal phenomenon as evaluative constructions was called
“rubber formulations” or “rubber paragraphs” (Golubtsov, 2019), and researchers of that period noted and analyzed
various degrees of “elasticity” of paragraphs and norms that allow for the possibility of different interpretations and
conclusions that define rights and obligations of the parties not so much on the basis of objective and easily
controllable signs, but depending on the discretion of the law enforcement entity.
Based on the analysis of the scientific literature (Golubtsov, 2019; Didenko, 2008; Nurmagambetov, 2007; Opalev,
2008; Ryasina, 2015; Muraev and Milikova, 2019; Solovyova and Frantsiforov, 2019), we conclude that in modern
Russian legal science, two main approaches have been formed to determine the essence of the category of “evaluative
concepts”. Proponents of the first approach proceed from the open-generalized (non-closed) nature of evaluative
concepts, noting that the legislator identifies and fixes in the rule of law one or more general features of the regulated
process (action, phenomenon), which are recognized by the subject of law enforcement, regardless of individual
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circumstances and involves clarification and identification of other essential features already in the course of
consideration of a particular case, based on the current situation. Consequently, the content of evaluative concepts is
established only by evaluating a specific law enforcement situation. In the theory of law, such concepts are referred
to as open relatively definite ones (Didenko, 2008; Nurmagambetov, 2007).
Within the framework of the second approach, the authors highlight not the openness, but the abstractness and
fuzziness of the concept, which is evaluative, for characterization. The legislator forms the content of evaluative
(fuzzy) concepts in the rule of law before the appearance of a certain law enforcement situation, the subject of law
enforcement, considering a specific case, decides on the inclusion of a law enforcement phenomenon (action, process)
in the scope of the evaluative concept based on professional and general legal consciousness, relying on the prevailing
moral attitudes in society, taking into account social interests, taking into account the established law enforcement
practice and scientific theory. Thus, the emergence of a specific law enforcement situation does not determine the
possibility of understanding the evaluative concept expressed in the legal norm, its content remains unclear, since the
multi-element nature of the concept allows another subject of law enforcement to narrow or expand the features
included in it when making a decision in the next specific situation. It is the fuzziness of the scope of evaluative
concepts that allows the legislator, when designing legal norms, to cover an indefinitely wide range of circumstances
of reality, ensuring the maximum possible generalization of the law (Opalev, 2008; Ryasina, 2015). P.P. Muraev and
A.V. Milikova emphasize that evaluative concepts (categories) are primarily a kind of technical and legal methods,
through which the legislator gets the opportunity to consolidate (express) uncertainty in the law, leaving the definition
of the specific content of the norm to the discretion of the subject of law enforcement. In turn, the specified subject
formulates the final content of the evaluative concept based on professional legal consciousness and in relation only
and exclusively to the individual circumstances of a particular case (Muraev and Milikova, 2019).
Common to these two approaches is the conclusion that the binding of a specific fact to an evaluative concept, the
concretization of the content takes place taking into account the objective circumstances of a certain situation, based
on the inner conviction and professional legal consciousness of the law enforcement entity.
At the current level of development of legal thought, the inevitability of including evaluative concepts in the legal
norms in the Russian legal community is practically beyond doubt, the discussion is only on the breadth of their
application - some researchers believe that it is necessary to expand the scope of their use, others consider evaluative
concepts to be a kind of "necessary evil" , therefore, since it is not possible to completely exclude evaluative concepts
from the text of regulatory legal acts, their use by the legislator should be limited as much as possible, leaving only
the reasonably necessary minimum (Solovyova and Frantsiforov, 2019). Both positions are extremes, which, as
historical experience shows, is always harmful. On the other hand, the idea of formulating some kind of general rule
“to maintain a balance of evaluative concepts and absolutely definite prescriptions in legislation” seems utopian.
Therefore, we believe that a promising direction in the science of legal technology is the development of practically
applicable and doctrinally substantiated rules for the use of evaluative concepts in various types of legal norms (for
example, a ban on the use of evaluative concepts in the disposition of a prohibitive norm).
The practical implementation of evaluative concepts is inextricably linked with the circle of subjects of evaluation.
We believe that the subjects of application of evaluative concepts can be conditionally divided into three large groups.
The first group includes professional-authoritative subjects of evaluation: (1) state-authoritative subjects who have the
authority to enforce evaluative concepts by virtue of their official status: the court, law enforcement officials (for
example, they must correctly qualify the act, respectively, independently assess the presence or the absence of such
signs as “special cruelty”, “significant damage”, etc.); (2) entities to which such powers have been delegated in a
certain area: local governments, arbitration courts, self-regulatory organizations (for example, a self-regulatory
organization of arbitration managers, applying disciplinary measures against its members, evaluates the “good faith”
and “reasonableness” of the actions of the arbitration manager from a professional standpoint). The second group
consists of persons who are under the influence of a norm containing an evaluative concept, and who determine the
vector of their behavior in accordance with their understanding of the norm. Thus, participants in civil legal relations
must act in good faith (Article 1 of the Civil Code of the Russian Federation); the burden of proof of the
disproportionate forfeit lies with the defendant (paragraph 73 of the Decree of the Plenum of the Supreme Court of
the Russian Federation dated March 24, 2016 No. 7 “On the application by the courts of certain provisions of the Civil
Code of the Russian Federation on liability for breach of obligations.” Based on these provisions, a participant in civil
legal relations must imagine what behavior the concept of good faith requires from them and to carry out the selection
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of evidence establishing the fact of "disproportion". The third group is professional lawyers. The abstraction of modern
laws begins to require "legal advice", which, in accordance with the legal position of the European Court of Human
Rights (ECHR) is not a sign of right uncertainty. In fact, this group occupies an intermediate position between the first
two, explaining the essence of the evaluative concept for representatives of the second group and substantiating the
interpretation of the evaluative concept in the interests of their client for subjects from the first group.
A special place in this structure is occupied by the court, since only it, in the event of a legal dispute, has the right
to interpret the evaluative concept based on its inner conviction and the circumstances of a particular case, which will
be equally binding for everyone. This possibility of the court is such an aspect of judicial discretion as interpretation.
Evaluative concepts as a subject of interpretation contribute to the convergence of abstract law with the specifics of
social life, both to the phenomena of the present and the future. In particular, the following are subject to interpretation:
basic characteristics (“reasonableness, fairness, conscientiousness”, etc.), situations and states (“essential conditions”,
“usual way”, etc.); actions ("abuse of the right"); motives (“disrespectful reasons”, “unjust enrichment”), time intervals
(“reasonable time”), things (“luxury items”, “indivisible thing”), the subjects of legal relations themselves (“bona fide
purchaser”, “unworthy heir”). The question naturally arises - what is the degree of freedom of judicial discretion in
the interpretation of evaluative concepts? The legislative border is based on the postulate of the rule of law, the
morality of the judge (his conscience and sense of justice) and the procedures for verifying the legality of judicial acts
that have entered into force (Etcheverry, 2018; Nikitin, 2020). In connection with the ascertained freedom of discretion
in the interpretation of evaluative concepts, it is necessary to answer a number of questions: if a legal norm includes
an evaluative concept, can higher courts change the conclusion on the evaluation of this concept made by a lower
court by establishing their own criteria (not specified in the law and not identified by the lower court) and what is the
limit of the mandatory use of the interpretation of the higher court - is it applied only within the framework of a
particular case or becomes mandatory in similar cases? Turning to judicial practice, we see that in the case of OAO
Commercial Bank Moskommertsbank, the Determination of the Supreme Arbitration Court of the Russian Federation
No. VAS-4836/11 dated 06/09/2011 states that “the criteria of insignificance and disproportion were not established
by the legal norm, the concepts were evaluative in nature, in in connection with which the courts have the right to
conclude ... based on the actual circumstances of a particular case", and the Resolution of the Presidium of the Supreme
Arbitration Court of the Russian Federation No. 4836/11 of 09/06/2011 critically assesses the correctness of the
position chosen by the lower courts when interpreting the evaluative concepts of "significance and proportionality",
limiting their freedom judicial discretion, offering its own interpretation, with which the lower court is obliged to
agree. However, it is hardly possible to disseminate the position and conclusion of a higher court in a particular case
as a mandatory requirement in resolving similar cases. The evaluative concept is therefore introduced into the legal
norm so that, within the boundaries outlined by the legislator of objective signs, specific circumstances are taken into
account in each specific situation. Thus, judicial discretion in the interpretation of evaluative concepts is limited not
so much by the scope of the law as by the position of higher courts that determine the boundaries and procedure for
its use and the level of professional competence of the judiciary. We believe that the evaluative concepts used in the
construction of the rule of law give the judiciary discretionary power, the restriction of which should also be based on
the principle: “identical cases should be resolved in the same way”. Exceptions to this principle may be cases of a
radical change in the socio-economic situation, as well as legally significant regional features.

3.2. Advantages and Problems of Using Evaluative Concepts

Considering that evaluative concepts are an integral feature of modern legislation, a generally recognized method
of legal technique, it is advisable, based on the analysis of scientific literature, to summarize the positive and negative
aspects that arise when they are used in a legal norm.
The advantages of using appraisal concepts include the following:
1. They provide the flexibility of legal regulation, allowing, when social relations change, not to make changes to
the legislation (prospective regulation, i.e. regulation of those social relations that are absent at the time of the
introduction of the norm into the legislation, but which may predictably arise subsequently), reducing the likelihood
of occurrence gaps in the law. They create the necessary balance between the statics of slowly changing positive law
and the dynamics provided by the activity of judicial discretion, allowing the law to keep up with the rapidly changing
world.
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2. They afford regulation of the widest possible range of social relations.

3. They ensure the conciseness of the legal norm, allowing not to “clutter up” the text of the law, and to ensure a
balance between the abstract and the casuistic in the presentation of the norms of law.
4. They contribute to the convergence of national legal systems. Globalization is gradually erasing the classical
division of legal systems into Anglo-American, Romano-Germanic, Muslim and others. Now we can talk about a
steady trend towards the convergence of legal values, a slow movement towards hybrid legal families operating with
borrowed legal tools that have proven their practical value in the course of evolution. This process is in most cases
perceived as positive, contributing to the development of interstate relations, the realization of the rights and freedoms
of citizens, and effective economic cooperation. For example, the concept of good faith is present in one form or
another in civil law and the Anglo-American and Romano-German systems: good faith in Russia; im guten Glauben
and Treu und Glauben in Germany, bonne foi in France, good faith in England, Canada, USA, South African countries,
is included in the norms of international acts. The question arises whether the content of the principle of good faith is
not only comparable, but also similar throughout the world? In Germany, all contracts are by default based on good
faith, this is also the approach taken by Russia, in English law there is no rule or standard of default good faith in
contractual conduct, but it is provided by a number of other procedural rules, South African law takes a mixed position,
cautious about positive obligations of good faith in contract law, while arguing that all contracts are based on a basic
requirement of good faith that could not be independently enforced (Hutchison, 2019; Schramm and Kohen, 2019).
Good faith can be seen as an ethical value or principle of control based on standards of decency and fairness, the
general thrust of the concept of good faith lies in the idea of the value of the reasonable expectations of the parties and
requires the party only to behave honestly, without assuming an obligation to put the interests of his opponent above
his own, and existing differences in legislation are explained not by a different concept of good faith, but by a different
understanding of specific types of contracts, the possibility of including (or not including) a good faith clause in a
contract, and various legal consequences of such a decision (Bork and Wandt, 2020).
We believe that the problematic aspects of the use of evaluative concepts include the following:
1. A systemic problem of the legislative use of evaluative concepts is the possibility of too free discretion of the
law enforcer (most often the court) in interpreting the norm formulated through such concepts. In this situation, the
court is not so much the mouth of the law, but the owner of the power, which allows not only to reveal the meaning
of the norm laid down by the legislator with an evaluative concept, but to ascribe to it its own content, often determined
not by the ideology of law, but by political or personal motives. Accusations of the politicization of the decisions
made are made against both national and international courts. For example, it is noted that the European Court of
Human Rights (ECtHR) between 1995 and 2011 issued six judgments in cases against Turkey (regarding the
continuing consequences of Turkish military intervention in 1974 in Cyprus), the legal content of which was largely
politicized. (such concepts as the independence and impartiality of the court, the reasonableness of compensation, the
availability of justice were interpreted) (Türkmen et al., 2017). It is pointed out that quite often the Inter-American
Court of Human Rights and the ECHR, realizing that in most acute political situations, the ability of a party to a
dispute to reasonably assert that it is its actions that are legal, adds to its chances of achieving what it wants, act
strategically, using, among other things, the mechanism of judicial disagreement (dissenting opinion of the judge),
reducing or increasing the perceived legitimacy of the decision (Naurin and Stiansen, 2020). It is impossible to ignore
the fact that the ideas of achieving complete objectivity and fairness of the law, neutrality and impartiality of the court
do not withstand a collision with reality, the gap that has always existed between law and natural law is actually
expanding today, and the limits of judicial independence are largely set by political preferences (Larsson et al., 2017).
As for the Russian legal practice, the norm of Article 333 of the Civil Code of the Russian Federation is indicative,
which allows, in exceptional cases, a reduction in the penalty if it is clearly disproportionate to the consequences of
the violation of the obligation. In case of violation by the developer of the deadline for the transfer of the construction
object, the calculation of the penalty is imperatively defined in Part 2 of Art. 6 of the Federal Law of December 30,
2004 No. 214-FZ “On participation in the shared construction of apartment buildings and other real estate objects ...”
and the Law of the Russian Federation of February 7, 1992 No. 2300-1 “On consumer protection”. In the field of
maritime transportation, the amount of the penalty is determined by the practice of business relations between business
entities, and currently, in accordance with the legal position set out in the ruling of the Supreme Arbitration Court of
the Russian Federation dated 10.04.2012 No. VAC-3875/12, it is recognized that the principles of reasonableness and
proportionality corresponds to the size of the penalty from 0.1% to 0.5% for each day of delay. An analysis of court
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decisions for 2017-2020 shows that the courts are very actively using the norm of Article 333 of the Civil Code of the
Russian Federation, reducing the penalty in the event of a violation by the developer of the deadline for the transfer
of the construction object to arbitrarily set 70%, 50%, or 45% and are extremely reluctant to use this rule in the field
of shipping, resorting to it in truly exceptional cases, referring to a significant change in average market indicators
(interest rates on loans, exchange rates, inflation rates, etc.), provided that the currency of the contract is not Russian
ruble. Based on this, we assume that the establishment in the law of a rather high amount of a penalty for violation of
obligations in the construction business was a populist norm, the effect of which is leveled by the norm on the
possibility of reducing the penalty, formulated through the use of evaluative concepts. Thus, the decisions of the court
lie not so much in the legal plane as they contain a political and (or) corruption component.
It should be recognized that at present this problem cannot be solved through the use of legislative tools. As the
entire history of the development of human civilization testifies, there can be no ideal law. But for the correct
application of the law, which protects the system of values accepted in society, the courts must work. With an
independent and professional judiciary, even imperfect laws can, to a certain extent, be amended by worthy
interpretation. The more transparent the argumentation, the more accurately the motivation of the conclusions reflects
the cognitive process that actually led the court to the decision, the more verifiable the interpretation of evaluative
concepts.
2. The next issue of the problem is the difference in the criteria for evaluating a norm containing an evaluative
concept at the court level and at the level of a person who is under the influence of this norm and makes a decision in
accordance with the level of his legal consciousness. In the absence of an assessment system, legal uncertainty grows,
the risk of situations in which a certain specialist says that the meaning of the norm of the law is not what it seems to
be in its literal (philistine) reading, but such as it is seen by a certain group of “initiates” increases.
Only a model formed by practice can help here, allowing the participants in the process to orient their behavior to
the criteria established precisely by uniform practice.
3. Unsystematic legislative application. Legal science in the Soviet period, as, indeed, at the present time, the
emphasis in the study of evaluative concepts was placed on the study of their logical and legal nature, the identification
of types and the development of a classification, however, the methodological approach in the context of developing
the requirements of legislative technology was practically not used. Accordingly, the rules for the use of such concepts
in legal regulation have not been developed by domestic science. This gives rise to a whole range of problems
associated with the formulation and consolidation of evaluative concepts in the law.
Firstly, the formulation of a definition of some evaluative concept by means of another evaluative concept or the
need to make a discretionary decision based on a chain of evaluative concepts.
For example, in paragraph 2 of Art. 450 of the Civil Code of the Russian Federation, such damage is recognized
as a material breach of the contract that the party is largely deprived of what it was entitled to count on when
concluding the contract; in paragraph 5 of Art. 393 of the Civil Code of the Russian Federation, the process of proving
the fair amount of damages is based on a “reasonable degree of certainty”. The fuzzy expression of the legislator's
intention leads to inconsistency in law enforcement practice and significant discrepancies in the application of these
norms by the parties to the contract. Thus, in order to make a decision on compensation for losses and damage under
maritime transport contracts, the court must be based on a chain of interrelated evaluative concepts: reasonableness,
reliability, good faith, proportionality, etc., which inevitably leads to situations where the court will either a too formal
approach is chosen, or vice versa.
Secondly, the use of the conceptual apparatus of morality and ethics for the formulation of legal evaluative
concepts, which entails the declarative nature of the norms. For example, fixing such a morally evaluative concept as
“justice” in the norms of law as principles causes certain difficulties in law enforcement and lively discussions in
science.
Justice permeates the entire existing reality, embodied in philosophical and legal constructions, the norms of the
law and any relationships in society. In different historical and social conditions, justice was perceived differently,
filled with a new meaning, but the idea of justice, albeit understood differently, was the moral core of any society,
allowing it to achieve social harmony. Despite the fact that the postulates underlying the concept of justice are simple,
almost intuitive, it turns out to be very difficult to apply them in real life.
Over the centuries of research into the concept of "justice" within the social sciences, many definitions have been
proposed, which can be summarized in five main approaches: liberal egalitarianism, cosmopolitanism, opportunity
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approach, libertarianism and "critical views" (Biermann and Kalfagianni, 2020). All concepts are based on the idea of
fair distribution: benefits, rights, burdens, duties and other things, in which people get what they are due and what
they deserve. Unfortunately, there are no agreed criteria for determining what a person "deserves". Different contexts
and political ideologies give rise to different and often incompatible criteria of justice: equality (each person receives
an equal share of benefits and burdens); merit (those who are most competent and produce the most deserve the most);
distribution of benefits based on needs and realizable ability to work for the benefit of society (“from each according
to his ability - to each according to his work”); the need for all people to be recognized and able to participate on an
equal footing in public life; the fairness of the distribution process (and not its result), and the criteria for procedural
justice also differ: the process can be determined democratically, or based on the free exchange of permitted resources
within the framework of legal procedures (Dirth et al., 2020).
Theories are increasingly developing that take the concept of justice out of the boundaries of an individual state,
giving it a supranational, international character, which in modern political philosophy is interpreted as "global" or
"cosmopolitan" justice. An even broader concept is “planetary” justice, which has not yet received an unambiguous
formalization either in terminology or in implementation mechanisms, but in scientific research is understood as a
synthesis of environmental justice, climate justice, global justice, social justice and justice for non-human beings,
developed by such way to take into account the conditions of the Anthropocene (Biermann and Kalfagianni, 2020;
Dirth et al., 2020; Hickey and Robeyns, 2020). Thus, justice is not a legal concept.
The term "fairness" is actively used in legislation, judicial practice and legal doctrine, however, the Russian
legislator does not establish criteria for justice, does not give a legal definition, and therefore legal scholars have
carried out, and are conducting, a significant number of studies in order to formulate the concept of justice and develop
criteria evaluation, but at present the legal doctrine cannot offer a clear, unambiguous and generally accepted concept
of the concept of what, in fact, is understood as justice. Based on this, most researchers attribute the category of
"fairness" to the evaluative concepts of Russian legislation, noting its backbone character for other evaluative concepts
(Ryasina, 2015; Mayboroda, 2019). Let's analyze whether this assumption is correct.
In the field of law, justice as an evaluative concept is interpreted at several levels. The first level is the level of
perception of justice as an essential feature of law, some kind of idealistic intellectual orientation, a transcendent idea.
In the concepts of jusnaturalism, natural law - the law that exists objectively, universal, genuine, true, having a non-
coercive unconditional and unlimited action - is opposed to positive law - subjectively constructed, limited to the
current, inauthentic, untrue, changeable, guaranteed by state coercion. Natural and positive law move in different
planes of being - ideal and empirical, theory and practice. The installations of natural law are not self-evident, they
arose and developed in the conditions of the gradual humanization of society and are to some extent utopian.
Discussing whether there is an absolute basis for the notion of justice, or whether it is simply a utilitarian scheme
concocted for the purpose of dominating those who act as administering justice; whether there is some inalienable
right of every person to justice and what is its concrete embodiment; whether justice is an ideal that needs to be
achieved and implemented, including by embodying it in law, almost every researcher tries to answer the question of
the relationship between law and justice. The most common approaches include the view of ancient and renaissance
philosophers that a law legitimately adopted by the authorities is already just; views that call for a clear separation of
reliable and predictable law from justice as a value judgment that always has an emotional coloring (Kelsen); the idea
that justice is somehow part of the law, since law is a system for applying justice to human conflicts.
The second issue is the level of perception of justice as a general social value, which is reflected in positive law or
a general legal principle that is not directly positive, but is implied in the texts of laws. The Constitution of the Russian
Federation of 1993 contains a mention of justice in the preamble as a general social value transmitted to us by our
ancestors. Consideration of justice as a general legal principle implies its implementation not only in the norms of
substantive law (objective justice), but also in the norms of procedural law (fairness of procedure), since, in accordance
with recent studies, not only the end result is important for people, but also the way the case is considered, which
affects the perception of legitimacy and public trust (Graaf, 2021).
Thus, at these levels of perception, justice is not so much an evaluative concept as a moral, ethical guideline in the
development and implementation of the norms of both substantive and procedural positive law.
Thus, at these levels of perception, justice is not so much an evaluative concept as a moral, ethical guideline in the
development and implementation of the norms of both substantive and procedural positive law.
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8 Author name / Transportation Research Procedia 00 (2023) 000–000

The third level is the one of consolidation of the term "fairness" in legal norms. In the Civil Code of the Russian
Federation, justice is fixed as a principle (for example, when calculating astrenet, art. 308.3) and as a requirement (for
example, when determining the rights and obligations of the parties in case of impossibility of analogy, art. 6). In the
Criminal Code of the Russian Federation - as a principle (Art. 6) and as the purpose of punishment (Art. 43). In the
Code of Criminal Procedure of the Russian Federation - as a requirement for a sentence (Article 297). In society, there
is not and cannot be a formula of justice shared by all, but we believe that by introducing the concept of justice into
the text of a legal norm, the legislator should outline the boundaries of its application, but this is done only for the
principle of justice in criminal law, where justice is understood as the proportionality of punishment to the deed and
the identity of the perpetrator.
Thus, in Russian law, justice, on the one hand, acts as a guideline, determining what kind of regulation should be
and how the law should be implemented, on the other hand, as an evaluative concept applicable in a particular
situation. We believe that the use of the category “fairness” as an evaluative concept in the rule of law is not entirely
correct, since it leads to the formation of an erroneous opinion about the application of the concept of justice only in
the cases indicated by the legislator (an example of the need for the intervention of the Constitutional Court of the
Russian Federation, explaining that justice is a requirement for court decision not only in a criminal case, but in a civil
one) and the emergence of a vicious practice to motivate any, often directly opposite, decisions with justice.
The sense of justice is largely irrational. Based on this, in recent years, a new direction of scientific research has
been formed that considers justice as a mathematical function, attempts are being made to quantify justice and develop
algorithms for using artificial intelligence to assess justice in the legal field (Chiao, 2019; Mitchell et al., 2021). All
sciences in one way or another study simplified models of reality, however, the key problem of introducing
mathematical models of evaluative concepts into law is the ambiguity of who and how will determine which
parameters should be included in the model and which should not.

3.3. Concretization of the Evaluative Concept of "Good Faith" in the Field of Shipping

The concept of good faith is very significant in maritime law - it is difficult to find any decision of national or
international arbitration regarding the establishment of liability and the amount of damages under contracts for the
carriage of goods by sea, which does not mention good faith (Choudhury and Das, 2020).
Incoterms 2020 rules note when transporting by sea, firstly, the need for the seller to independently (in the absence
of agreement) determine the point of delivery of the goods and the point at the destination to be guided by the intended
purpose of the goods and the principle of good faith (not specified); secondly, in case of non-compliance with the
requirements of good faith when agreeing on the terms of the contract of carriage regarding the placement of the
transported cargo by loading the goods on board the ship (CFR and CIF), the responsibility in case of loss or damage
to the thing will be borne by the seller, and not the carrier, since he did not make due efforts to choosing the right
method of transportation (here the principle of good faith is “linked” with the need to strictly comply with the rules
for placing cargo of various types along the side of the ship or on board the ship); thirdly, while complying with the
obligation to insure the goods, the seller must choose an insurer who has a "good reputation", i.e. act in good faith (in
this case, the concept of good faith behavior is determined by a combination of concern for the interests of the partner,
and honesty in business relations).
Given that London is currently the main global platform for resolving maritime disputes - more than 80% of cases
are resolved in English arbitration - the interpretation of good faith in marine insurance under English law is of interest.
The concept of utmost conscientiousness (“uberrimae fidei”), enshrined in Art. 17 of the British Marine Insurance Act
1906, imposed on the insurer the obligation to disclose any significant circumstance that is known or should be known
to him from professional experience, and in an extremely strict format - legal provisions made it possible to cancel
the insurance contract without refund of the insurance premium due to violation of the disclosure rule information is
erroneous, without fraudulent intent, as well as with a slight distortion of significant information. Moreover, a number
of scientists and practitioners extended the action of the utmost conscientiousness both to the pre-contractual stage
and during the period of the insurance contract, until the claims are settled (Zhu, 2020). In connection with the adoption
of the Law on Insurance in 2015, the concept of utmost conscientiousness was transformed into the principle of fair
presentation of information (fair presentation), according to which the obligation of the insured to inform is no longer
as active and wide as possible - now the insurer must also be active in the study of insured risk, sending inquiries to
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the insurer. The new rule, moving away from the objective concept of the onset of negative consequences, divided the
criteria for fair presentation into two categories: intentional or frivolous, or lack thereof. In the latter case, the
annulment of the contract is no longer intended. The novelties of the British law are designed to balance the benefits
of the insurer and the insured, to minimize the possibility of abuse of the right by the insurers by reducing the insurance
obligations of the insured. However, the principle of good faith (but not the utmost good faith!) as a standard for
marine insurance contracts remains (Art. 3,5,7 of the UK Insurance Act 2015) - the obligation to act in good faith is
still assumed for both parties, specified in the rules of law obliging to make transfer of information in good faith and
correctly (according to reality), in a reasonably clear and accessible form (i.e. structured with the highlighting of
significant circumstances).
In Russian law - the Civil Code of the Russian Federation, the Merchant Shipping Code of the Russian Federation
(MSC RF) - good faith acts as a general legal principle, since marine insurance regulations do not introduce, unlike
UK law, criteria for clarity, accessibility and sufficiency of information transmitted. However, the new provisions of
the UK Insurance Act 2015 are close to the provisions of Art. 250 MSC RF. Interestingly, for the sphere of marine
insurance, the presumption of good faith of the insured does not apply - the burden of proving the absence of guilt in
providing false or incomplete information rests with the insured. It is assumed that there is no weak party in the
contract of marine cargo insurance, since the parties are professional subjects of economic turnover, therefore, it is
the responsibility of the party to prove the proper fulfillment of the information obligation.

4. Conclusion

The interpretation of the term "evaluative concepts" is based on a meaningful understanding of law, therefore,
depends on the legal tradition of a particular state and the specific concept of legal understanding that prevails in
society at a certain stage of its development. Understanding the legal essence of the category of “evaluative concepts”,
considering the place of evaluative concepts in both civil doctrine and public branches of law seems to be significant
for the development of legislative technique and law enforcement practice.
Legislation is aimed at stabilizing social relations in the long term, which should contribute to sustainable
development. The key word here is stability. The consistency of the norms both in the current national system of legal
regulation and with the generally recognized principles and norms of international law is also important. In addition,
the prescriptions of laws must be sufficiently abstract and thoughtful so as not to require constant specification and
meet the criterion of relevance for a reasonably long period, and on the other hand, sufficiently specific to express the
intention of the authors. Equally important is the availability of legal regulations, clarity, literacy, clarity and
comprehensibility. An ordinary citizen, for the regulation of whose life laws are written, is not obliged to own some
special terminology. Moreover, laws should not be given a meaning that is understandable and accessible only to
lawyers. Citizens deserve clear communication from the state in laws and other acts that should be clear to their target
audience.
The formation of a qualitative rule of law containing evaluative concepts requires a high professional level of
lawmakers, mutual and close cooperation with specialists in those areas where normative regulation is required, taking
into account the results of scientific research and historical law-making experience, and the availability of practically
applicable and doctrinally substantiated rules for the use of evaluative concepts. in various types of legal norms.
The presence of evaluative categories in the text of normative legal acts expands the possibilities of the court in the
course of legal rhetoric to select a chain of arguments in the interests of individuals, groups and state entities,
introducing a political or subjective-personal aspect into judicial decisions. The expansion of the boundaries of judicial
discretion through the increasing use of evaluative concepts with a decrease in the professionalism of the judiciary
gives rise to the problem of tension between civil society and the courts, reducing the public's trust in justice. The
solution to this problem lies not so much in the field of jurisprudence as morality, ethics and educational technologies.
The complication of the legal system by norms with evaluative concepts requires the presence of an active, mature
legal thinking, therefore, the use of mathematical models of evaluative concepts in law seems to be quite controversial.
The adoption by the UK in 2015 of the new Insurance Act, and the subsequent amendments to the Marine Insurance
Act 1906, gave rise to an interesting phenomenon of the possible distinction between good faith into "general good
faith" and "ultimate (highest) good faith", which has yet to be comprehended.
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10 Author name / Transportation Research Procedia 00 (2023) 000–000

For a more correct use of the concept of good faith in the field of maritime transport, we consider it appropriate,
taking into account the different levels of awareness of the parties, to legislatively define the criteria for clarity,
accessibility and sufficiency of the information transmitted.

References

Golubtsov, V.G., 2019. Evaluation Concepts in Russian Codifications of Civil Law. Lex Russica 8(153), 37-50. (In Russ.). DOI:10.17803/1729-
5920.2019.153.8.037-050
Didenko, A.G., 2008. Evaluative concepts in civil legislation. Civil legislation. Articles. Comments. Practice. Favorites II(Issues 11-20). Rarity,
Almaty, 25-26.
Nurmagambetov, A.A., 2007. Evaluative concepts as criteria for restricting the freedom of a civil contract. Journal of Russian Law 2(122), 129-
137.
Opalev, R.O., 2008. Evaluative concepts in arbitration and civil procedural law. Monograph. Volters Kluver, Moscow, 248.
Ryasina, A.S., 2015. Evaluative categories in Russian law: modern approaches. Actual problems of Russian Law 3, 31-37.
Muraev, P.P., Milikova, A.V., 2019. Evaluative Categories in the Theory and Practice of Substantive and Procedural Law. Legal Concept 18(2),
30-34. (in Russ.). DOI: 10.15688/lc.jvolsu.2019.2.4
Solovyova, N.A., Frantsiforov, Yu.V., 2019. Evaluative Concepts and Their Importance in Ensuring the ^ Rights and Legitimate Interests of
Participants of Criminal Proceedings. Legal Concept 18(2), 12-18. (in Russ.). DOI: 10.15688/lc.jvolsu.2019.2.2
Etcheverry, Juan, 2018. Rule of Law and Judicial Discretion Their Compatibility and Reciprocal Limitation. Archiv fuer Rechts-und
Sozialphilosphie 104(1), 121-134. DOI: 10.25162/arsp-2018-0007
Nikitin, A.A., 2020. Legal restriction of judicial discretion. Bulletin of the Saratov State Law Academy 1(132), 191-197. DOI: 10.24411/2227-
7315-2020-10022
Hutchison, A., 2019. Good Faith in Contract: A Uniquely South African Perspective. Journal of Commonwealth Law 1, 227-271.
https://www.journalofcommonwealthlaw.org/article/7441-good-faith-in-contract-a-uniquely-south-african-perspective (accessed: 21.07.2021).
Schramm, B., Kohen, M., 2019. General Principles of Law. Oxford Bibliographes. https://www.oxfordbibliographies.com/view/document/obo-
9780199796953/obo-9780199796953-0063.xml (accessed: 21.07.2021).
Bork, K., Wandt, M., 2020. “Utmost” good faith in German contract law. ZVersWiss 109, 243-254. DOI: 10.1007/s12297-020-00478-6
Türkmen, F., Öktem, E., 2017. Major rulings of the European Court of Human Rights on Cyprus: the impact of politics, Mediterranean Politics
22(2), 278-300. DOI: 10.1080/13629395.2016.1175544
Naurin, D., Stiansen, Ø., 2020. The Dilemma of Dissent: Split Judicial Decisions and Compliance with Judgments from the International Human
Rights Judiciary. Comparative Political Studies 53, 959-991. DOI: 10.1177 / 0010414019879944
Larsson, O., Naurin, D., Derlen, M., Lindholm, J., 2017. Speaking Law to Power: The Strategic Use of Precedent of the Court of Justice of the
European Union. Comparative Political Studies 50, 879-907. DOI:10.1177/0010414016639709
Biermann, F., Kalfagianni, A., 2020. Planetary justice: A research framework. Earth System Governance 6, 100049. DOI:
10.1016/j.esg.2020.100049
Dirth, E., Biermann, F., Kalfagianni, A., 2020. What do researchers mean when talking about justice? An empirical review of justice narratives in
global change research. Earth System Governance 6, 100042. DOI: 10.1016/j.esg.2020.100042
Hickey, C., Robeyns, I., 2020. Planetary justice: What can we learn from ethics and political philosophy? Earth System Governance 6, 100045.
DOI: 10.1016/j.esg.2020.100045
Mayboroda, T.Yu., 2019. On the classification of evaluative concepts in civil law. Universum: economics and jurisprudence: electron. scientific.
Journal 8-9(65). URL: https://7universum.com/ru/economy/archive/item/7752 (accessed: 21.07.2021).
Graaf, C.V.de., 20214. Procedural fairness: Between human rights law and social psychology. Netherlands Quarterly of Human Rights 39(1), 11-
29. DOI: 10.1177/0924051921992749
Chiao, V., 2019. Fairness, accountability and transparency: Notes on algorithmic decision-making in criminal justice. International Journal of Law
in Context 15(2), 126-139. DOI:10.1017/S1744552319000077
Mitchell, S., Potash, E., Barocas, S., D'Amour, A., Lum, K., 2021. Algorithmic Fairness: Choices, Assumptions, and Definitions. Annual Review
of Statistics and Its Application 8(1), 141-163. DOI: 10.1146/annurev-statistics-042720-125902
Choudhury, S., Das, P., 2020. Good Faith in Maritime Law Contracts. In: Mukherjee P., Mejia, Jr. M., Xu J. (eds) Maritime Law in Motion. WMU
Studies in Maritime Affairs 8, 115-130. DOI:10.1007/978-3-030-31749-2_7
Zhu, M., 2020. The Utmost Good Faith in Maritime Insurance: The Nature. Beijing Law Review 11, 99-107. DOI: 10.4236/blr.2020.111006