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Law and morality are like two wheels of a car and two wings of a bird. The relationship between them is an eternal topic in history and reality. The history of human legal development tells us that from the emergence of law to the realization of the rule of law, it is an interactive evolution process of moral legalization and legal moralization. Moral legalization emphasizes that human moral concepts are cast into law, that is, the formation process of good law; The moralization of law emphasizes the quality and morality of people internalized by law.
No matter how long the rule of law is restored, there will always be fish that slip through the net; No matter how wide the adjustment scope of the rule of law is, there is always something we can't do. In this sense, wherever the rule of law fails, the rule of virtue can be used, and the rule of law cannot completely replace the rule of virtue. 1] Rule by virtue refers to the importance and application of moral self-discipline, moral education and moral construction in social governance. The rule of law and the rule of virtue should complement and echo each other in social governance, that is, the combination of law and morality, "comprehensive governance." The ancient law in China is actually a dual-track system, that is, two systems or legal sources and forms coexist. One is the law formulated by the state, and the other is the "etiquette law" and "moral law". These two social adjustment methods cooperate with each other and bring various social phenomena into their adjustment scope. However, contemporary social law in China is the only means of social regulation, and morality as another means of regulation is seriously absent. This single legal system needs to be adjusted urgently. Therefore, it is necessary to study the relationship between "etiquette" and "law" in ancient China, absorb its reasonable core, and establish a dual legal system of rule by virtue and rule by law.
Firstly, the relationship between morality and law in ancient China was investigated.
"Virtue" was a comprehensive concept integrating morality, politics, belief and strategy in the Western Zhou Dynasty. It requires rulers to respect heaven and be filial to their parents, be strict with themselves and be lenient with others, and use punishment only when they have to, but they must be careful when using it. On the one hand, Confucianism's inheritance and development of "virtue" highlights the political significance of "virtue", mainly including leniency, and holds that "virtue" is the main method to govern the country and win the hearts of the people; On the one hand, it raised the status of "morality", and regarded "morality" as the guiding principle of administration and justice, that is, it advocated "taking morality as the subject of punishment". [2] This Confucian rule of virtue is based on "courtesy". "Rituals have good achievements, so things are blessed by God". (3) The origin of rites is related to religion, sacrifice and patriarchal clan system, which embodies the patriarchal clan system in society. At the same time, ancient China, as an identity society, also contributed to the proliferation of rites, which supported each other. But the scope of etiquette is difficult to define, all-encompassing, everywhere. It can be the basic belief of personal life or the fundamental program of governing the country. It is the ultimate basis for making moral judgments and legal judgments on others, and it is also the basic spirit contained in social ownership; On the one hand, it makes detailed provisions on human behavior, on the other hand, it makes theoretical abstraction on all aspects of society. Let's talk about "law", "punishment" is as flat as water; Hey, so if you can't touch it straight, then go. "[4]" as flat as water "means fairness and justice. Therefore, in order to correctly understand the relationship between ceremony and law, we must put it in the ancient soil of China and examine it from the perspective of China tradition.
(A) the legalization of morality
The so-called moral legalization mainly means that legislators express certain moral concepts and moral norms or rules in the form of law and national will with the help of legislative procedures, and make them standardized and institutionalized.
(B) the moralization of law
The above investigation reflects the process of legalizing the traditional morality in ancient China. Let's talk about another theme-moralization of law. Law and morality are two different but closely related social phenomena. In ancient China society, "ritual punishment" produced double results: on the one hand, moral admonition had the power of law, on the other hand, legal norms must also perform moral functions. The so-called moralization of law mainly focuses on the process of obeying the law, that is, the legal subject internalizes obeying the law as a moral obligation and treats the legal obligation with moral obligation.
(3) The characteristics of the evolution of the relationship between etiquette and law in ancient China.
Looking at the relationship between "ceremony" and "law" in ancient China, the evolution of moral legalization and legal moralization shows the following characteristics: 1. The Confucian thought of "benevolence and righteousness" is the basis of the evolution of "ceremony" and "law". Confucianism has been in a dominant position in the feudal society of China for thousands of years, and it played an important role in the laws of China at that time. Confucian ethics such as "Three Cardinals and Five Permanences" are the general principles of China's ancient orthodox morality. When there is a conflict between law and morality, it has been solved by legal concessions since the Han and Tang Dynasties: the law openly stipulates the system of "kissing first and then hiding", which openly destroys a person's dignity and opens the door to convenience. This is the choice of the ancient people in China. 2. The development of social and economic conditions is the condition for the evolution of "rites" and "laws". Economic development is an important symbol of social progress, and it is also a prerequisite for mankind to move towards a higher civilization. The history of China's ancient legal system shows that the rise and fall of economy is directly related to the morality of law. In the period of economic development, people have higher moral requirements for society, but also show higher moral standards, so the law at this time embodies a wider range of morality. On the contrary, during the economic depression, people's moral performance is not as good as before, and the overall moral level of society is also declining. At this time, the law lacked moral education. 3. Maintaining the feudal imperial power is the core of the evolution of "rites" and "laws". No matter who is in charge of the rise and fall of law and morality, the primary consideration should be to safeguard the feudal imperial power, which is also the inevitable fate of class social morality and law firms. 4. The attitude of the power class is the key to the evolution of "ceremony" and "law". To put it bluntly, "ritual punishment" is the legalization of morality, which requires morality to conform to the will of the power class; Paying attention to "courtesy" and observing "law" is the moralization of law, which requires that the law should be the law that the power class internalizes into its own morality.
Morality and law are interrelated. They all belong to the superstructure and serve a certain economic base. They are two important means of social regulation. Since mankind entered a civilized society, any society has to resort to these two means at the same time when establishing and maintaining order, but this is only biased. The two complement each other and promote each other's interests and interests. Its relationship is reflected in:
1. Law is an effective means to spread morality. Morality can be divided into two categories: the first category is the morality required by social order, that is, the "minimum morality" necessary for the survival of a society, such as not harming others by violence, seeking rights by fraudulent means, and not endangering public safety; The second category includes those principles that help to improve the quality of life and enhance the close relationship between people, such as fraternity and selflessness. Among them, the first morality usually rises to law and can be implemented through sanctions or rewards. The second kind of morality is a kind of morality with higher requirements, which is generally not suitable to be transformed into law, otherwise it will confuse law and morality, and the result is that "law will be illegal and morality will be immoral". The implementation of law itself is a process of punishing evil and promoting good, which not only contributes to the formation of people's legal consciousness, but also contributes to the cultivation of people's morality. Because the law, as a national evaluation, has a unified standard for what it advocates and what it opposes; The evaluation criteria contained in the law are consistent with or close to the most basic moral beliefs of most citizens, so the implementation of the law has played an important role in the formation and popularization of social morality.
2. Morality is the evaluation standard and driving force of law and a useful supplement to law. First of all, the law should contain the minimum morality. A law without moral foundation is a kind of "evil law" and cannot be respected and consciously observed by people. Second, morality can guarantee the implementation of the law. "It is not good for politics, and it is not good for yourself." The improvement of the professional ethics of law enforcers and the enhancement of the legal consciousness and moral concept of law-abiding people all play a positive role in the implementation of the law. Third, morality is complementary to law. Some should not be adjusted by law, or should be adjusted by law, but due to the lag of legislation, moral adjustment has played a supplementary role.
3. Morality and law will be transformed into each other in some cases. With the development of society, some morals have gradually emerged, which are considered to be very important to society and in danger of being frequently violated, and legislators may bring them into the scope of law. On the contrary, some behaviors that were regarded as immoral in the past and therefore need to be prohibited by law may quit the legal field and turn to moral adjustment.
In short, law and morality are different from each other, irreplaceable, confusing and can not be ignored, so a single rule of law model or a single rule of virtue model inevitably has defects; At the same time, law and morality are interrelated and complementary in function, and they are both important means of social adjustment, which makes it possible to rule by virtue and rule by law.
On the Relationship between Ideology and Morality and Law
From a sociological point of view, China is being integrated into a society ruled by law. For anyone in the future society, it is impossible to survive without laws. With the establishment of the socialist market economic system and China's accession to the WTO, all market players must follow unified rules or systems. In this highly regulated society, "legal means" will be more and more widely used in our real social relations. This means that from personal daily life behavior to the creation of great achievements, it is inseparable from certain legal knowledge or legal skills. When we judge the horizon of practice with the attitude of considering development and caring for life, we will naturally find that the necessary legal literacy has become an indispensable basic element for modern citizens, especially young students, to stand on the society.
What is legal literacy? In short, it refers to the ability or quality to understand and apply the law. A person's legal literacy is manifested in his skills of mastering and applying legal knowledge and his legal consciousness. Legal knowledge mainly consists of two parts, one is the knowledge about the rules in written law, which is the so-called legal provisions system; The second is the knowledge about principles in law, that is, the so-called jurisprudence or legal theory. To learn and understand the law in a general sense means to be familiar with some basic legal provisions and master some universally applicable legal principles. Legal consciousness is a form of social consciousness, "it is the sum total of people's legal views and legal feelings, including their views on the essence and function of law, their requirements and attitudes towards the current law, their evaluation and interpretation of the law, their understanding of their rights and obligations, their evaluation of whether a certain behavior is legal, their understanding of legal phenomena and their legal concepts." [1] Good citizens' legal awareness can drive citizens to actively abide by the law. Only when citizens have good legal consciousness can law-abiding be transformed from the external coercion of state power into citizens' recognition of legal authority and the value elements contained in the law, so as to strictly exercise their rights and fulfill their due obligations according to law; Will fully respect the legitimate and reasonable rights and freedoms of others; Will actively seek legal ways to resolve disputes and disputes, and consciously use legal weapons to safeguard their legitimate rights and interests; Will take the initiative to resist acts that undermine public order. In addition, good citizens' legal consciousness can drive citizens to obey the law rationally and realize the goal of rule of law. Rational law-abiding comes from rational legal emotion and rational legal cognition based on legal ideas. Legal consciousness is generally formed by the integration of legal psychology, legal concept, legal theory and legal belief, among which legal belief is the highest level of legal consciousness and the core of legal education for college students.