German-French China Traditional Law Course Thesis

On the Relationship and Conflict between Law and Morality

China, Zhejiang University Law School

The relationship between the rule of law and the rule of virtue as the general plan of governing the country has always been a controversial issue. How to combine the rule of law with the rule of virtue is one of the difficult problems that people are facing at present.

First, the relationship between law and morality.

Law is a reflection of the will of the ruling class under certain social material living conditions, and it is the sum total of the code of conduct formulated or recognized by the state and guaranteed to be implemented by the state coercive force. Morality, on the other hand, is the value orientation of good and evil and the rules of conduct that should or should not be adjusted between people. Therefore, there are obvious differences between the two:

First, form and essence. As a formal norm of quantifiable operation, law can regulate people's behavior. In most cases, it can only achieve the unity of motivation and effect through the effect of behavior, and requires that behavior must be combined with specific environment and conditions.

Third, afterwards and afterwards. Law punishes the evil of the past, so it is afterwards, while morality is different. It is preventive and preemptive. Law, as the main means to adjust social relations, pays more attention to ex post adjustment, while morality, as the value orientation of most people in society, is mainly reflected in that it is the standard for people to evaluate beforehand.

Third, punish evil and promote good. The rule of law is based on the theory of evil nature, focusing on the problem from the standpoint of bad people, while the rule of virtue based on the theory of good focuses on the problem from the standpoint of good people.

Fourth, clarity and abstract fuzziness. Law is a specific and clear code of conduct, accompanied by corresponding sanctions, with objective and universal clear standards. Morality, as a value judgment, is highly subjective. Its content exists in the moral consciousness of social members and is expressed through people's behavior and words.

Fifth, heteronomy and self-discipline. The implementation of the law depends on the state and coercive force (

Such as army, police, courts, prisons, etc. ) to ensure the harmony of interpersonal relationships and the stability of social order. Morality is maintained only by social public opinion, customs and habits, people's inner beliefs and other spiritual forces, and plays a role by the consciousness of social members.

Sixth, systematization and decentralization. Law is the embodiment of the unified national will, and it is a logical and rigorous system composed of legal norms of different legal departments according to different levels of effectiveness. Morality does not have this feature, it may come from different classes, strata, different nationalities and races, forming different systems, and the moral norms in each system have no clear division of departments and effectiveness levels.

Since law and morality have their own personalities, what is the internal relationship between them?

First, law and morality are an inseparable whole, interdependent and mutually supportive. Only talking about the law and abolishing morality will often lead to severe punishment and eventually lead to social chaos. At the same time, not talking about the law, but talking about the so-called morality, will make people's behavior fearless, do not know how to converge, and eventually lead to social chaos.

Second, law is a means and morality is an end. The highest goal of the law is not how many criminals have been cracked down and how many disputes have been mediated, but to guide people to act according to law through the compulsory intervention of the state. The purpose of law is to realize moral effect, and moral effect also depends on law.

Third, law is the guarantee of morality, and morality is the foundation of law. Law must be based on morality. Only by improving the moral standard of the whole people and guiding and educating people with advanced moral concepts can we realize that everyone abides by the law and is ruled by law. Similarly, if there is no strict law to protect, no severe punishment for acts that seriously endanger society, and no final mediation standard for various contradictions, people's behavior will lose its norms and morality will become empty.

Second, the way to solve the conflict between law and morality.

(1) Legislative channels:

This means that moral standards are confirmed or absorbed by law, making them legal standards that directly promote moral construction.

First, the requirements for moral norms that can become legal norms.

1, to ensure the progress of ethics. As a moral norm, its formation is a long process, and its change is also a long process. Therefore, moral norms lag behind social economy and law. Morality that does not meet the requirements of social development and law, if legalized, will inevitably have a bad influence and be counterproductive.

2. It is a low-level moral standard. It is generally believed that morality includes two levels: first, morality that embodies the requirements of obligation is necessary to maintain social order and belongs to low-level morality; The second is the morality that reflects people's desires and pursuits, which belongs to advanced morality. For low-level morality, it can be achieved through legislation and coercion. High-level morality mainly reflects people's yearning for a better society in the future, and it is impossible to legalize it.

3. This code of ethics should meet the requirements of the development of the times and the specific situation of each country. Singapore 1996 has made it illegal to be naked in your own home. The reason for legislation is that modern urban buildings are highly dense and have strong visibility. If a person is naked in his own house without drawing the curtains, he can be seen by people in the next building, which is harmful to social weathering. This law is in stark contrast to the legalization of "naked swimming beaches" in other countries. Therefore, when introducing ethics into legal norms, we should consider whether it conforms to the development of the times and the specific conditions of various countries.

Second, how does morality enter the law?

There are three ways to bring morality into legal norms:

1. Make the moral principles and norms in different fields and industries clear, concrete and regular as far as possible, and make them the legal norms of national will. For example, the moral norms in the field of marriage and family, such as parents raising their children, children supporting their parents, and the obligation of mutual loyalty between husband and wife, are concretized and regularized, and the legal responsibilities of violators are clearly defined to make them operational.

2. Introduce moral principles that are difficult to be specific and clear directly into the code to make them legally effective. Because the legal rules are always limited, but the legal and moral problems in social life are infinite, and many problems in social life cannot be solved because of the lack of clear rules or legal provisions. Due to the generality, abstraction and wide application scope of moral rules, moral principles that have been raised to legal norms can be the basis for court trials, thus solving these problems.

3. Provide applicable ethics through legislation, making it an effective supplement to national legislation. For example, in legislation, custom or moral norms are recognized as the standard to determine whether an act is legal in legal practice.

(2) Law enforcement and judicial channels

Because there is a big gap between the realistic rule of law and the ideal rule of law, we should correctly handle the contradiction between "law" and "morality" in the process of law enforcement and judicature.

First of all, under normal circumstances, judges should deal with all kinds of behaviors in strict accordance with the requirements of "universality" and "consistency" of the law, regardless of whether the behavior violates morality or not. Therefore, if judges often ignore the legal provisions and pursue social moral goals in case trials, then the law is useless.

Secondly, under special circumstances, morality should also play a corresponding role in the field of law enforcement and justice. The protection of morality to the implementation of law is embodied in the functions of "political morality" and "judicial morality". Laws must be implemented and applied by a large number of administrative and judicial personnel. If the state officials who have the power of law enforcement and judicial power lack basic professional ethics, replacing the law with power and abolishing the law with power will appear at any time. This puts forward high-level requirements for the professional ethics factors of law enforcement and judicial subjects themselves. First of all, civilization and strictness are the basic morality of law enforcers. The simplicity, rudeness and wanton indulgence of law enforcers in the process of law enforcement have damaged the due authority of law and the rule of law. Secondly, objectivity and justice are the basic morality of justice. Judicial corruption largely stems from the decline of judicial professional ethics and the inability of judges to exercise their power correctly. Therefore, it is particularly important to strengthen the objective and fair judicial professional ethics of judicial personnel. Objective and fair judicial professional ethics need the institutional guarantee of judicial independence, and a large number of judges who regard justice as the primary value of justice need to appear.

(3) Strengthen the guidance of law-abiding morality

Aside from the specific differences in age, gender, education level and property status of law-abiding subjects, we can roughly divide law-abiding subjects into legal professional groups and the general public. Because of the differences in legal knowledge and legal consciousness between the two groups, there are often different degrees of moral compliance when obeying the law.

Legal professional groups, especially those engaged in legal services and legal education. For such a group, the standard should be higher than the moral standard of the general public. First of all, it is required to carry out moral self-discipline effectively and persistently in a complex and changeable society; Secondly, we should guide such groups to rationally evaluate the law. Moral evaluation of the statute law is an essential quality of legal workers, and this evaluation will become the driving force for amending the statute law to a certain extent. For the moral guidance of the general public to abide by the law, first, we should strengthen the moral propaganda of obeying the law and emphasize the legitimacy of their actions. Many ordinary people always hate judicial corruption, but when they are interested in the case, in order to make the result of the case beneficial to them, they try their best to get through the relationship, thus forming the people's desire for the rule of law and the dislocation of the non-legal paradigm of action. Second, we must establish the belief that the broad masses of people strive for glory in rights. Whether it is a national right or an individual right, the premise of all rights is to be ready to claim rights at any time. Our people's weak awareness of rights leads to bullying the weak politically and economically, and we often see many rights stipulated by law become a paper declaration. Therefore, we should strengthen the moral guidance for the public to abide by the law.