The buffer between law and morality

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the Chen Dynasty

The main types and concrete manifestations of the conflict between law and morality in contemporary China

1. Essential conflict and formal conflict. Theoretically speaking, in a specific society, morality and law, as people's behavior norms, should be consistent, otherwise people will be at a loss, but in real life, we often hear the saying that "what is reasonable is unreasonable, and what is legal is unreasonable". This sentence vividly reflects the conflict and contradiction between law and morality. In real life, there are generally two types of conflicts between law and morality: substantive conflicts and formal conflicts.

First, because the conflict between the moral system and the legal system is essentially a conflict. Generally speaking, with the change of social life, morality and law will constantly change in their own unique way of combining with social life. In a specific period of a country or region, there is only one legal system formulated or recognized in the name of the country, which is the unification of laws required by modern rule of law. However, the moral system is not the case. In addition to people forming a mainstream moral system consistent with the legal system in the practice of social life, people may have different moral concepts from this mainstream moral system because of their different experiences. In contemporary China, where the social structure has undergone drastic changes and transformation, although the government has actively promoted a large number of laws and regulations to meet the requirements of establishing a market economic system, the transformation of the whole social structure is a slow process, and the fact that China has a vast territory and extremely unbalanced social and economic development has aggravated the complexity and long-term nature of the social structure transformation in China. Therefore, in this special period of social transformation, due to the lag of the transformation of moral concepts relative to the policy promotion, there are traditional morality, post-modern morality and others besides the moral system adapted to the modern legal system. These moral systems are different from the standards for evaluating people's behavior in the modern legal system. This different standard will inevitably produce different evaluations on people's same behavior, such as approval or opposition, affirmation or negation, thus forming a conflict between law and morality. In fact, people's actual actions are conscious. If people can't handle the conflict between law and morality in this special period, it will greatly affect the transformation of social structure and the process of social development, and the process of rule of law construction in China. Especially in the contemporary era when China's social structure has undergone rapid changes and transformation, it is mainly reflected in the conflict that the tradition of natural agricultural society and morality and law are relatively divorced from the modern market economy society.

Secondly, due to the different requirements of legal and moral adjustment methods, the author calls it "conflict on the formal level" This means that in a relatively stable development period, although the moral system and the legal system are consistent on the whole and reflect the ethical requirements of a specific society, they present different specific contents and characteristics because of their uniqueness. The author thinks that the conflict between law and morality caused by this is not a conflict in essence and fundamental sense, but only a conflict in form and appearance, because they have the same denominator-after all, it is the ethical reality of a particular society. The conflict between law and morality in this sense includes the following aspects: first, the conflict caused by the different authenticity of reflecting and expressing social ethics, that is, the conflict caused by the different accuracy of summarizing and reflecting social life conditions between law and morality. Although the content of law is a reflection of specific social ethical requirements, legislators cannot create laws at will, in reality, due to the influence of many factors such as legislators' understanding of social material living conditions, understanding and application of legislative laws, legislative techniques, cultural traditions and so on, the content of law is not naturally reasonable. Morality is often formed in people's long-term social life practice, but at the same time it has obvious local and subjective characteristics and is closely related to each individual's life experience. Therefore, its accuracy in reflecting social life is bound to be limited. Second, the conflict between moral ideal and the realistic characteristics of law. The moral pursuit of ideals and noble social justice embodies the public's yearning for a better life. Law can and should be the moral obligation that citizens generally abide by, but noble morality cannot and should not be the universal legal obligation of citizens. The pursuit of exquisite social justice by law is the lowest moral standard, and its purpose is to maintain the order, stability and security of the whole society. Therefore, the law is reality-oriented, the legalization and institutionalization of real social relations is the constant pursuit of legal construction, and the law always follows the reality step by step. In real life, when social conditions change, laws are often made to solve the problems inconsistent with existing moral concepts. Third, the conflict between the procedural requirements of law and the substantive requirements of morality. Generally speaking, the law has clear norms and strict procedural requirements. Legal acts have both substantive and procedural provisions. Whether it is a violation of entity or procedure, it is illegal. Morality is only a substantive norm, and there is no procedural requirement. If an act conforms to both moral norms and legal entity norms, but not legal procedure norms, this illegal act conflicts with legal evaluation, because it pays attention to motivation and results and makes positive moral evaluation. Fourth, there is a conflict between the formal and explicit requirements of law and the substantive and principled requirements of morality. In this regard, the author will discuss it in detail later. In addition, there are technical and regulatory provisions in the law. When moral evaluation is inconsistent with these regulations, conflicts will also arise.

2. The realistic expression of the conflict between law and morality in contemporary China. Since modern times, especially since the reform and opening up, the conflict between law and morality in China has become increasingly prominent, which is mainly manifested in the existence of "reasonable and unreasonable" behaviors and "legal and unreasonable" behaviors in social life. 〔7〕? As far as "reasonable and illegal" behaviors are concerned, there are mainly the following categories in real life: (1) "Righteousness" category. In ancient China, the principle of "putting righteousness above family members" was to safeguard justice, and the guilty relatives were not selfish. Now it generally refers to submitting one's relatives to legal sanctions or imposing "sanctions" on them for the benefit of society or others, that is, the so-called "righteousness". 〔8〕? Here, "putting righteousness above family members" refers to the latter situation, which is often ethical, but does not meet the requirements of the law, so it is subject to legal sanctions. For example, Fu Jixiang, a villager in Zhenxiang Village, Zhang Qiao, Taixing City, Jiangsu Province, suffered from an incurable brain tumor, which led to a great change in temperament. He often made trouble by drinking in the village, molested women and even raped his mother many times, which became a "public hazard" in the village. His parents Fu and Ding Yunan felt that leaving their son would bring endless trouble to the village and family, so they pushed him into the river and drowned him. 〔9〕? (2) Improper self-relief. This situation often refers to people's self-help in violation of the law because they can't realize their rights quickly and effectively or can't realize their rights in accordance with legal channels at all. For example, Lin, a 34-year-old from Zhongshan City, Guangdong Province, was dissatisfied with his father's gambling, and beat and cursed himself and his relatives, and sharpened his knife to kill himself and his sister. After another quarrel, he pushed his father to the ground and covered his face with a pillow, causing his father to suffocate and die. 〔 10〕? (3) the category of "eliminating pesticides for the people". It should be a morally commendable behavior to kill people, including both legal and illegal behaviors, but here it mainly refers to illegal behaviors, that is, people punish people who endanger the interests of society and others without legal permission. There is such a case: Li, who is in his thirties, is a villager of 8 groups in Liangshuiquan Village. He blackmailed and stole many times, which caused everyone in the village to close at night. Li Yin was arrested by the public security organs for taking drugs many times. On the day of the local temple fair, Li found the host of the temple fair and said that he wanted to "get some money to smoke." As the activity belongs to the villagers' fund-raising activity, its request was rejected. Subsequently, Li took a kitchen knife and settled accounts with the village cadres. Angered villagers surrounded the street and "taught" Li with sticks, stones and bricks. At that time, 300 or 400 villagers, men, women and children, and even pedestrians began to do it. Li was killed on the spot. 〔 1 1〕? (4) Altruistic motives are illegal. This kind of behavior means that when people are in a dilemma between choosing legal behavior and moral behavior, they violate the law because they choose moral behavior that conforms to the interests of others and society. For example, on June 16, 2005, Ruan Huailian, a pregnant woman in Dongchuan District People's Hospital of Kunming, was in labor and needed blood transfusion for emergency treatment due to massive hemorrhage. Because the hospital just lacks AB blood, after the emergency help to the society failed, hospital doctor Lu Xinhua volunteered to donate blood to help the patients. Considering that it takes 5-6 hours for Dongchuan District to go back and forth from Kunming, I am afraid to ask Kunming Blood Center for help, which delays the rescue of patients. Dongchuan District People's Hospital saved Ms. Ruan and her mother with 200CC blood donated by Dr. Lu Xinhua after reporting to Dongchuan District Health Bureau for the record. However, according to the Compulsory Blood Donation Law of People's Republic of China (PRC), this behavior is illegal blood donation, so it was confiscated by the relevant departments and fined *** 13360 yuan. 〔 12〕? Of course, in addition, there are many "reasonable and illegal" behaviors that evade the law, but the "reasonable" here is obviously not in line with certain morality, but refers to the pursuit of maximizing interests in line with certain cost-benefit analysis. Therefore, I don't think this is a conflict between law and morality.

The "legal and unreasonable" behaviors in real life mainly include: (1) dealing with "reasonable and illegal" behaviors legally. Generally speaking, the conflict between law and morality is mainly manifested in the existence of a large number of "reasonable and illegal" behaviors. If these behaviors are handled in strict accordance with the provisions of the law, then this kind of handling behavior will become "legal and unreasonable" behavior. For example, Wuhan Morning Post reported that a "good daughter-in-law" stopped in the no-stop area of Wuchang Railway Station for less than two minutes to pick up luggage for a pregnant woman who was pregnant for more than seven months and was fined by the traffic police. Although the "sister-in-law" begged and the surrounding people also helped to plead, the traffic police were unmoved. To this end, people present are talking about it. Everyone thinks that "little sister-in-law" does good things in violation of regulations, and the violation time is not long, and there is no traffic jam. The traffic police should adapt the rules appropriately. However, people in the legal profession generally believe that the traffic police's punishment for "sister-in-law" is completely correct. 〔 13〕? (2) In real life, there are behaviors that "exploit legal loopholes" but obviously violate morality. This behavior is due to the imperfection of the law, the parties taking advantage of the gaps and loopholes in legal adjustment, and the principle of "freedom without prohibition", which leads to the conflict between law and morality.

Thirdly, the analysis of the main causes of the conflict between law and morality in contemporary China.

1. Theoretical logic of conflict between law and morality: formal justice and substantive justice. Justice is an indispensable pursuit of mankind in any era, and it is also the basic ethical concept of any society. Generally, it is achieved through the regulation of human behavior by law and morality. It is generally believed that justice includes at least the following two meanings, namely, the same treatment in the same situation and different treatment in different situations. However, under certain circumstances, people may judge it as the same situation or different situations according to different standards. As Hart, the most famous contemporary jurist, said: "The structure of the concept of justice is quite complicated. We can say that it consists of two parts: (1) consistent or unchanging features, which are summarized in the motto of "the same situation is treated equally"; (2) The criteria of mobility or variability, as far as any given goal is concerned, are the criteria used to determine whether relevant situations are the same or different. " 〔 14〕? That is, when determining whether a situation is the same or different, law and morality, as important ways to realize justice, show different emphases. Generally speaking, law is more likely to attribute it to the same situation to achieve formal justice, while morality focuses on attributing it to different situations to achieve substantive justice. Formal justice should aim at substantive justice, but its independence and characteristics make it possible to deviate from the requirements of substantive justice, resulting in the following two situations: First, abstract justice that embodies universal rules may lead to concrete justice being impossible to achieve. For example, Yu Bin, the former deputy mayor of Linxiang City, Hunan Province, used the bribe income of10.5 million yuan to solve the actual financial difficulties of subordinate township schools. If Yu Bin really only wanted to solve the practical problems of ordinary people by taking bribes, then if he was convicted and sentenced in accordance with the provisions of the criminal law, it would obviously make many people feel that it did not meet the requirements of substantive justice. However, if he is not convicted and sentenced for this reason, it may legalize bribery for various reasons and cause greater injustice. It is precisely because law can only involve behavior and its direct purpose that it is often impossible to make every case meet the requirements of substantive justice because of the complexity of special cases. Second, procedural justice, which embodies the requirements of legal formal justice, may lead to the failure of substantive justice. For example, if someone kills someone but destroys all the evidence, the court will acquit him because of the lack of evidence, which will not only make it difficult to achieve substantive justice, that is, the rights of the victim, but also affect social security and order to a certain extent. Of course, we can't punish substantive justice because it can't be realized. Because the judgment of the court has universal significance, if it is "suspected", it will lead to the judge's subjective judgment, and more innocent "She Xianglin" will suffer injustice. In fact, as long as the legal provisions can ensure that most cases can be solved fairly.

The conflict between law and morality is not only due to the deviation between formal justice and substantive justice in theory, but also due to the deviation between morality and substantive justice and the deviation between law and formal justice. First of all, the individual characteristics of morality may not meet the requirements of substantive justice. Although theoretically people can communicate and negotiate rationally [15]? Get moral knowledge that embodies substantive justice, but not everyone can participate in this process and reach an agreement. Even if everyone participates in this procedure and reaches an understanding, not everyone can always act according to the requirements of substantive justice. Because when moral * * * knowledge is transformed into people's individual behavior, unique and self-interested individuals often attach their meaning to the universally accepted moral * * * knowledge intentionally or unintentionally because of the pursuit of interests, thus making morality as an individual behavior norm and moral * * * knowledge that embodies substantive justice have a certain distance. Therefore, when ethics or substantive justice, which is manifested as a social relations system, becomes the moral concept of social individuals, it is bound to have more or less individual characteristics, thus creating a certain distance from substantive justice, which may increase its distance from formal justice and law. Second, in modern society, as a country's positive law, subjective will is one of its important characteristics, both from the perspective of production and application. From the legislative point of view, the proportion of written law in the laws of modern countries is increasing, even all. In this way, the legislator's subjective will and ability, such as personality characteristics, living environment, experience, life experience, education level, etc., all affect his values and concepts, thus affecting the laws he formulates. As far as the application of law is concerned, modern life is becoming more and more complicated, the limitations of written law are becoming more and more obvious, and the subjective will of judges is more important to the law. Especially for Judge China, his limited rationality also makes it difficult for him to make people feel that the law is universal and equal through his own behavior of applying the law. For example, 1998, Ge Rui, known as one of the "Three Musketeers", bought the same counterfeit drugs in pharmacies in Guancheng District, Mangshan District and Zhongyuan District of Zhengzhou City for more than 200 yuan, and then filed a lawsuit in three courts respectively. As a result, the three courts gave three different judgments. 〔 16〕?

2. The deep-seated reason of the conflict between law and morality: the conflict of value culture in social transformation. Generally speaking, in the development of any society, people's ideas will change with the gradual changes of society, and law and morality in social life will also develop and promote each other in mutual influence. The conflict between law and morality promotes the progress of morality and the development of law. Social change often requires laws and morals that are compatible with it, but the development of laws and morals is not synchronous. The change of moral concept often lags behind the development of society and the requirements of law, because it needs to be deeply rooted in people's hearts. When new moral concepts are not established, legal provisions often affect the formation of new moral concepts. Of course, this influence is not decisive, because the legal provisions themselves need to be reflected. It is through the understanding and reflection of social life and legal provisions that people form new morality. Of course, this new morality is not necessarily the basis of legal rationality. This kind of morality itself needs reflection, and the law is constantly revised and improved in the running-in with social life and people's reflection on morality. The progress of morality and the development of law are all carried out in countless reflections on human life style and living conditions, and this process is endless.

However, the transformation of social structure in contemporary China was initiated by the government during its operation. In this process, the state and the government have a great influence on the development of the whole society. Their extensive transplantation of western laws makes the conflict between law and morality in contemporary China more obvious, because the value pursuit and cultural concept carried by western laws are completely different from China's traditional culture. It is the conflict of value culture in the process of social transformation that has become the deep reason of the conflict between law and morality in contemporary China.

First, the conflict between collectivism and individual standard. Since the reform and opening up, the collectivism principle of "no matter how small the country is, no matter how big the individual is" has been constantly impacted by egoism and individualism. People began to modify the original collectivism principle that overemphasized the collective interests and ignored the connotation of individual interests. However, with the deepening of the reform and the gradual establishment of the market economy system, the nationalism tradition in China's traditional culture and its emphasis on social public interests make the collectivism in the moral field seem to be incompatible with the development of commodity economy and market economy, which leads to the emphasis on personal interests. As a sample of China's modernization, individualism characterized by attaching importance to individual rights has always been the mainstream of modern western society. Although there is communitarianism in the ideological field that criticizes western liberalism and is characterized by "social standard", they attach importance to and emphasize the realistic social public interest, but they always believe that any kind of emphasis on public interest may lead to the danger of totalitarianism. In the process of China's modernization, there are always contradictions and conflicts between western individualism characterized by individual standard and China's traditional culture and moral concepts that adapt to the development and requirements of market economy. This is because "under individualism, on the one hand, the concept of equality means that all elements in the same group have equal status, and individuals cannot infringe on everyone's rights;" On the one hand, it is the constitutional concept, that is, groups cannot kill individuals, but can only control individuals on the rights that individuals are willing to hand over. These ideas must first assume the existence of groups. There is no such thing in China's traditional thought, because all we have is egoism, and all values are egoism. " 〔 17〕?

Second, the conflict between human feelings and law. Whether in ancient China society or today's society, "human feelings", a word synonymous with reason, is of great significance. As far as modern times are concerned, theoretically speaking, the law should also reflect and embody human feelings. Because, when making legal norms, legislators always rely on their own direct or indirect experience, whether direct or indirect experience can not be separated from his social conditions. The emergence of law is like this, and the development and change of law is no exception. As a way of social interaction and communication, human feelings are bound to be closely related to the customs, psychological traditions and ways of thinking of a particular society, and even to some extent, it is the expression in people's social activities. On the contrary, if the law completely deviates from human feelings, it means that the law is empty or naked violence. History and reality have proved that trying to change people's values and behaviors through compulsory legal means will eventually lead to the invalidity of the law. At the same time, once the law comes into being, it is embodied as legal provisions and rules with language as the carrier, which is relatively independent and objective. Relative to the relative elasticity of human feelings, this makes the tension between them inevitable in real life. On the one hand, legislators who make laws on behalf of the country have their own independent way of thinking and independent values. Even they can't avoid customs and have their own independent interests. Therefore, it is impossible for them to formulate legal norms that fully reflect human feelings. On the other hand, the formulation of the law is mainly a summary of past experience, which is limited in advance, and its solidified characteristics make it lack the ability to cope with changing social life and cannot solve disputes well. As a concept or habit, human feelings will also be reflected as a kind of life wisdom and common sense formed by people facing real life. Its elasticity and flexibility make it have a unique solution to new problems in social life. As a sample of the construction of rule of law in China, the western rule of law requires us to make judgments according to specific legal rules, instead of paying attention to specific cases and sad stories behind legal facts, even though the result of such strict legalism may lead to substantial injustice, which is just the opposite of China people's emphasis on realizing human feelings or public morality in different specific cases.

Third, the conflict between "official standard" and right standard. In the traditional society of China, the society has always been integrated into the state, and the power standard, which is manifested as "official standard", has always been the main content of China's traditional political culture. Power standard means that the power of a country or government is supreme, and its operation is not subject to any constraints in theory; Law and morality, like other rules, are only means of power operation and their functions are extremely narrow. Rule by man is the inevitable logic of power standard. Because power must be realized by a subject (a specific person), a specific person can be a person, or it can be a group or organization composed of many people (because it has power, it is generally called a political organ or institution), whether it is exercised by one person or accompanied by several people, as long as power is not bound, it means complete rule of man. Even if many people hold power together, it is impossible for them to form containment and supervision, and they are likely to cooperate with each other for the benefit of * * *. Of course, in order to achieve effective rule, they may take some effective measures, such as "rule by virtue", but this does not change the status quo of rule by man. Right standard is the basic spirit of western law since modern times, and it is also the basic requirement of modern rule of law, that is, all members of society are equal subjects of rights; In the relationship between rights and obligations, rights are the purpose, the first, and the basis and significance of the existence of obligations; In the relationship between rights and power, the rights of citizens, legal persons, groups and other rights subjects are the purpose and boundary of the allocation and operation of national political power, that is, the allocation and operation of national political power is legitimate only when the realization of the rights of the subjects, the coordination of rights conflicts, the prevention of mutual infringement of rights and the maintenance of the balance of rights are guaranteed; In the process of exercising their rights, the subject of rights is only restricted by law, and the only purpose of determining this restriction is to ensure that the rights of other subjects are equally recognized, respected and protected, so as to create a free and fair legal order that can realize the rights of all subjects as much as possible. 〔 18〕?

Fourthly, the restriction of conflict between law and morality in contemporary China.

Generally speaking, the gradual change of social life will also bring about moral and legal changes. This is the normal state of legal development and moral progress. As mentioned above, this normal conflict not only promotes the development of law and morality itself, but also promotes the progress of society, but it must be within a certain limit and scope, otherwise it is not conducive to the development of the whole society. As Zimmer, a German sociologist, thinks: "In a certain social system, the less intense the internal conflict is, the more effective the conflict is in integrating the social system." 〔 19〕? In other words, in the same social system, if the conflict between law and morality is too great, it may lose its social integration function. "If there is a certain gap between the legal standards and the people's moral standards, the people can of course moderately correct their moral standards; However, if the gap between the two is too large, it will aggravate the conflict and estrangement between the law and society, increase the evasion of the law, and ultimately damage the authority of the legal system. " 〔20〕? Due to the drastic changes in our society in the past hundred years, especially the legal system transplanted from the west is fundamentally different from our traditional culture and moral concepts. This makes the conflict between law and morality in China more worthy of attention. Should we change moral concepts or improve the legal system? The author believes that the key to solve this problem lies in deeply understanding the relationship between law and ethics, paying attention to the ethical life of a specific society and exploring the ethical spirit.

1. In the process of legislation, we should aim at formulating good laws. The so-called good law should be a law that conforms to human nature, that is, the so-called humanitarian law. It requires that the spirit of law should take people as an end, not as a means, and fully respect the value and dignity of people.

First, the setting of the basic social system and structure must conform to the basic and universal laws of human nature. Rawls' definition of "veil of ignorance" in the "original state" during the formation of his principle of justice consciously excluded the particularity of human beings and filtered the universal humanity [2 1]? It is of great significance for us to understand the relationship between legal provisions and the most basic human nature. In his view, people are self-interested, but they also sympathize with their peers.

Second, citizens' basic political freedom should be guaranteed. In other words, "everyone has the same inalienable rights and an appropriate system of equal basic freedoms, which is compatible with the same freedom system for all." 〔22〕? Every citizen should have basic political freedom, such as freedom of thought or speech, which is an important condition to ensure the creativity of a country's citizens and the vitality and continuous progress of a society.

Third, social inequality caused by natural or social reasons should be limited. That is, "social and economic inequality should meet two conditions: first, its official positions and positions should be open to all under the conditions of fair and equal opportunities; Second, they should be conducive to the best interests of the most vulnerable members of society (the principle of difference). " 〔23〕? Only in this way can the relationship between people be more harmonious.