Reflections on Morality and Law
On Law and Morality
Abstract: The relationship between law and morality is an eternal topic, and philosophers and wise men all over the world are trying to give an answer. History and reality tell us that it is impossible to draw a clear line between law and morality. They complement each other, promote each other and play an irreplaceable role. Only by combining "law" with "morality" can we truly realize the goal of rule by law. Only the integration of France and Germany, mutual penetration and coordination, proper moralization of law, timely legalization of morality, and the combination of "ruling the country according to law" and "ruling the country by virtue" can create a harmonious society.
Keywords: law; Morality; Legalization of morality; Limit; Moralization of law
Law and morality are two major means to maintain normal social order. Since mankind entered civilized society, law and morality have always been accompanied and inseparable, just like two wheels of a car and two wings of a bird. With their unique advantages, they standardize people's words and deeds and promote the continuous progress of society.
People are used to borrowing a western proverb "Caesar's belongs to Caesar, and God's belongs to God" to locate the relationship between morality and law, and think that law and morality adjust their respective fields. I don't object to this view, but in addition to the areas of legal adjustment without moral adjustment and moral adjustment without legal adjustment, there are also areas where law and morality cross-adjust. As Bodenheimer said, "Morality and law represent different normative orders, and their control ranges overlap. Some areas of morality are beyond the jurisdiction of law, and some departments in law are hardly influenced by moral judgment. However, there is a substantial system of legal norms, the purpose of which is to ensure and strengthen the observance of moral order, which is still indispensable for the soundness of a society. " Law [1] came into being at the end of primitive society with the disintegration of clan society and the emergence of private ownership and class. In other words, law came into being simultaneously with the state, and morality existed before the appearance of law. As early as in primitive society, clan members observed clan customs and religious taboos. Law is a norm formulated and recognized by the state, and its implementation is guaranteed by the state's coercive force. It is usually expressed through various legal documents, and morality is mainly a subjective consciousness of people. It is directional and has no coercive force. It exists in people's minds and does not need to be expressed in words. Law only adjusts the externalized words and deeds of people, while morality not only adjusts people's words and deeds, but also adjusts people's motives and consciousness; The law emphasizes the equality of rights and obligations. "Without rights, there is no obligation, and without obligations, there is no right", which is also the core of the law. Morality emphasizes the standard of obligation and requires us to actively pursue truth, goodness and beauty, regardless of personal gains and losses. It can be seen that there are obvious differences between law and morality in terms of conditions, forms of expression, adjustment scope and specific content, and they should have their own adjustment fields. Their fields of self-discipline cannot interfere with and erode each other. For example, the organizational forms and rules of state organs, judicial trial procedures can only be adjusted by law, and spitting and swearing can only be regulated by morality. Law is the bottom line of morality, the most basic ethics in social life rises to law, and the state binds people to abide by and perform it with coercive force. The most important and basic social relationship in social life is the object of legal adjustment and moral adjustment. The destruction of this social relationship is not only sanctioned by law, but also condemned by morality. We can often see the shadow of morality in legal norms. For example, the moral requirements for administrative personnel in administrative law are guided by honesty and credit, public order and good customs in civil law. From a certain point of view, morality is the superior concept of law, and the extension of morality is wider than that of law, and a large part of legal adjustment can be classified as morality. Pound mentioned in Law and Morality that "criminal law should not be adjusted, but should be handed over to administrative law and civil and commercial law; And those laws that should not be adjusted should be handed over to the parties and their pastor conscience to deal with! "
Some people say that "the more developed the civilization is, the more perfect the legal system is, and the more moral norms are embodied in its laws. It can be said that the perfection of a country's legal system mainly depends on the number of moral norms incorporated into legal rules. In a sense, in a country with a sound legal system, the law has almost become a compilation of moral norms. " [2] From this, we can see the tendency of moral legalization. The so-called moral legalization mainly focuses on the legislative process, which means that legislators express certain moral concepts and moral norms or rules in the form of legislative process and national consciousness, and make them standardized and institutionalized. [3] There are many examples of moral legalization in China and the West, and the typical one is the legislative process in ancient China. Duke Zhou's ritual system is to sort out and supplement the rituals in Xia and Shang Dynasties, to further systematize the norms of rituals and to legalize the principles of rituals. "Respect" and "intimacy" are the basic principles of "Zhou Li", and this moral requirement has become the most important content in the law. Rites and punishments are the same in nature and complementary in application. Violation of etiquette is illegal, and violation of law is violation of etiquette. In the Han dynasty, the legalization of morality took another step forward, which was deeply influenced by Dong Zhongshu, a Han Confucian who "ousted a hundred schools of thought and respected Confucianism alone". All the principles in the law of the Han Dynasty were expressed in the form of law. The Tang Dynasty was the heyday of the combination of etiquette and law, and the etiquette of patriarchal ethical relations was basically legalized. "One size fits all" is an evaluation of the Tang law, which not only guides the formulation of laws, but also directly enters the law. Because China has been under the rule of Confucianism for a long time, it has always attached importance to the role of morality in society, and there has always been a trend of legalization of morality.
Legalization of morality is necessary. In the real society, we will always see some people who know the requirements of morality, but their actions are contrary to morality. A person who has lost his conscience and is shameless will not consider the moral consequences of his actions. This requires the legalization of morality, so that people's "knowledge" and "behavior" are consistent. Law is the unity of power and obligation, and morality is more important than obligation. Legalization of morality can ensure that people who perform moral obligations get corresponding rights. Of course, power can be given up, and actors can choose to give up their rights voluntarily. This can inspire more people to fulfill their moral obligations. "Abiding by the law is the moral obligation" [4] is conducive to the implementation of the law. "The social relations that morality can regulate are mainly non-antagonistic behaviors in non-antagonistic contradictions and antagonistic contradictions." [5] The contradiction between people with strong antagonism and fierce conflicts of interest must be adjusted by law. Morality is powerless in some cases. "The maintenance of a moral society requires not only many people to have a sense of morality, but also all people to have a sense of morality unconditionally. And it is very difficult to do this. As long as one person or very few people are immoral, it can destroy the moral resource allocation system of the whole society. " [5] Morality only condemns acts that seriously endanger society without punishment, which is obviously not enough. Crimes and other acts need severe sanctions. It is precisely because morality itself is not perfect that we should "legalize morality".
Moral legalization should be kept within reasonable limits, rather than blindly bringing all moral norms into the legal category. Law should be a reasonable compatibility of "doing something" and "doing everything". In fact, the law is not applicable in all cases, and not all social problems can be transformed into legal problems. The law has its own shortcomings and limitations, which cannot be overcome and avoided. It is precisely because of this that people's enthusiasm and creativity in constantly improving the law are stimulated. Mr. Liang Qichao once pointed out the disadvantages of law in his book "Political Thought in Pre-Qin Dynasty": "The source of legal power lies in the state. If you are overly superstitious about the rule of law, you will be superstitious about state power, and as a result, freedom will be swallowed up by the state. The rule of law is always mechanical, and everything is customized in the same mold, which hinders the development of personality. Forcing people to play tricks within the scope of the law has become what Confucianism says? People are shameless when they are free? This is the third one. " Incorporating morality into law is not in line with the ultimate goal of human beings to create law. With the development of society, some morals are gradually highlighted, which are considered to be very important to society and have the risk of being frequently violated, so they may be absorbed into the scope of law. On the contrary, some behaviors that were considered immoral in the past and therefore need to be prohibited by law may quit the legal field and turn to moral adjustment. Legalization of morality is to give a certain moral legal effect, and which morality needs to be incorporated into the law depends on people's recognition of behavior. This "degree" of moral legalization can be regarded as the degree to which the moral concepts of ordinary social members are accepted and needed, and the law puts forward the most basic requirements for social members. The moral level and personal accomplishment of members of the whole society are uneven. For people with high moral quality, the legal standard is too low, while for people with low moral quality, the legal standard is too high, so the law should adopt a "compromise value". One can ignore morality, but not break the law. The current marriage law in China accurately reflects the legalization of morality and its limits. China feudal society practiced the marriage system of "monogamy and multiple concubinage", and bigamy was universal, moral and legal. In our modern society, equality between men and women and monogamy are moral requirements. The current marriage law adheres to the principle of monogamy, clearly stipulates that "bigamy and cohabitation with others are prohibited", and takes bigamy as a legal condition for granting divorce, stipulating that the innocent party has the right to claim damages. It can be seen that the current marriage law has absorbed the moral factors of modern society to a great extent and increased the punishment for bigamy, but the current marriage law has not included all extramarital affairs in the scope of adjustment. In the final analysis, marriage and family belong to the private field, or to maintain feelings and family ties. The law should not be too strict. For another example, some scholars have suggested that self-destruction should be included in the criminal law as a crime of killing omission. It is a virtue to be brave enough to give up for others, and it is also the mainstream value that we have always advocated. It's good that everyone can do this. However, we must give a person the right to choose. If "saving others" requires our own lives, then we should at least have the right to decide whether to give up our own lives. If the law forces "saving others", it is forcing one life to exchange for another, resulting in the substantive inequality of the two right to life. Therefore, the question of whether to "save others" is still left to morality to regulate, and people are called upon to make a positive response through public opinion and social morality. Too much emphasis on the legalization of morality will easily lead to the weakening of morality. "The financial resources of the country cannot support the implementation cost after the legalization of morality." [7] Law cannot and cannot completely replace morality.
While moralizing morality, it is also necessary to moralize law. The moralization of law does not mean that the object of legal adjustment is absorbed into the moral scope, but that the advocacy and prohibition provisions in legal norms can be internalized into the objects that people consciously abide by, rather than being forced by the coercive force and legal binding force of the state. Morality is the sublimation of law. Legal norms must be based on ethics. Without ethics, legal norms will inevitably become the will of legislators. To solve some embarrassing problems in the law, we need to inject moral blood into the law, use the law flexibly and absorb the reasonable core of Confucian ethical law. In other words, moralized law should rely on moral function. What's more, people's thoughts, beliefs and private lives are all areas that cannot be adjusted by law. Strengthening the moral construction in these areas will help to form a good social atmosphere and social environment. The moralization of law not only contributes to the improvement of citizens' morality, but also contributes to the realization of the goal of rule of law. Law and morality belong to the superstructure, and are also an important part of social consciousness, which has a great impetus to social development. "Legalization of morality" and "moralization of law" are the highlights of today's society ruled by law, and they cater to the needs of the rule of law from different angles.
The relationship between law and morality is an eternal topic, and philosophers and wise men all over the world are trying to give an answer. History and reality tell us that it is impossible to draw a clear line between law and morality. They complement each other, promote each other and play an irreplaceable role. Only by combining "law" with "morality" can we truly realize the goal of rule by law. Only the integration of France and Germany, mutual penetration and coordination, proper moralization of law, timely legalization of morality, and the combination of "ruling the country according to law" and "ruling the country by virtue" can create a harmonious society.
References:
[1] by Bodenheimer. Translated by Heji. Jurisprudence: philosophy of law and its methods. Huaxia Publishing House, 1987, P386.
[2] Wang Yiduo. The basic way of moral construction. Philosophical research, 1997.
[3] Fan Jinxue. On legalization of morality and moralization of law. Law Review, No.2, 1998.
[4] Liu Yunlin. On the cultivation of citizens' law-abiding morality. Academic journal of zhongzhou, 2003.
[5] Luo. Moral course. Renmin University of China Press, 1986, P72.
[6] Wang Jianguo. Hypothesis of human nature and market economy. Economics Teahouse, Shandong People's Publishing House, 2000, P75.
[7] Hao Tiechuan. Legalization of morality. Procuratorial Daily,1999-11-24.
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