On the Relationship between Law and Morality (1)
Law and morality are two forces that dominate social development. They are different and interrelated. In the historical process of our country, law and morality complement each other and influence the historical trend on the basis of economy and politics. In reality, the conflict between law and morality is fierce, which urges us to look at the present from the past and seek solutions to practical problems from the handling of the relationship between ancient law and morality.
Keywords: law, morality and the rule of law
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. However, no matter how the legal skynet is repaired, there are always fish that slip through the net; No matter how wide the scope of legal adjustment is, there is always something beyond the reach. In this sense, the place where law is inferior is the place where morality can be used, and law cannot completely replace morality. Obviously, China's ancient thought of combining etiquette and law, with virtue dominating punishment assisting, provides a feasible historical textual research for us to adopt the governance mode of combining rule of virtue with rule of law today.
Jurisprudential analysis of the relationship between morality and law
(A) the concept of law and morality and its characteristics
Laws are formulated or recognized by the state and enforced by the state. They reflect the will and interests of the class that holds state power determined by the material living conditions of a certain society. They confirm, maintain and develop the social relations and social order of the class in charge of state power by stipulating the rights and obligations between people. Morality is the sum of people's ideas, principles and norms about good and evil, justice and injustice, honor and shame, justice and partiality. It relies on public opinion, traditional habits and people's beliefs to ensure its completion. Morality mainly reflects and adjusts social economic relations and other social relations from the interests of individuals and society as a whole.
Although there are great differences in the laws of different countries in history, we can still clearly see the characteristics of the law through various complicated legal forms. Generally speaking, the characteristics of the law generally include: 1. Law is a general, universal and strict code of conduct; 2. Law is a code of conduct formulated and recognized by the state; 3. Law is the code of conduct for the state to confirm rights and obligations; 4. Law is a code of conduct implemented under the compulsory guarantee of the state. Similarly, moral differences do not prevent them from having the following consistent characteristics: 1. Moral norms are non-institutionalized norms; 2. Ethics does not use coercion; 3. Morality is an internalized norm. Because they have played a great role in the development of human society, it is necessary to analyze them legally.
(B) the difference between law and morality
1, the legal and moral conditions are different. Laws are formulated or recognized by state organs in accordance with legal procedures by the ruling class using state power. It is the will of the ruling class that rises to the will of the state and is characterized by consciousness. Morality is gradually developed spontaneously in people's material production and life, and generally does not need special institutions and personnel to promulgate and formulate.
2. The normative contents of law and morality are different. The contents of legal norms are mainly rights and obligations, and these rights and obligations are corresponding; Morality needs people more than law. It should examine whether the motives of people's behavior are kind, and emphasize the obligations and responsibilities to others and social collectives, but it does not necessarily require society or others to bear the same obligations to them.
3. Law and morality have different manifestations. Laws are mainly manifested in various normative documents formulated by relevant state organs; Morality exists in people's consciousness and public opinion.
4. The adjustment scope of law and morality is different. The law adjusts the social relations that are related to fundamental and significant interests and need the intervention and protection of state power; The scope of moral adjustment is much wider than that of legal adjustment.
5. The implementation ways and means of law and morality are different. The implementation of the law needs to rely on the coercive power of the state to ensure; The implementation of morality mainly depends on the power of public opinion and education, people's consciousness, social groups and actors' internal self-coercion.
(C) the relationship between law and morality
There are two main schools of thought about the relationship between law and morality: according to positivist law, is law an order of the sovereign or an order? Closed logic system? Between law and morality? Practical method? With what? It should be like this? There is no necessary connection between the two; Natural law holds that only the law that embodies morality is the law with legal quality.
Different from other countries, China has its own special national conditions, and the relationship between law and morality also has a specific meaning and understanding. Combined with China's national conditions, the relationship between law and morality is as follows:
1, the internal laws of a country and the morality of the ruling class are the embodiment of the overall will of the ruling class. As we know, morality has class nature, and so does law. Both of them reflect the will and interests of the ruling class, and the difference is only the difference in external manifestations.
2. The law and morality of the ruling class permeate each other. Loyalty, filial piety and righteousness are the moral norms of China feudal dynasties to maintain class rule, which are embodied in their legislation. A heinous crime? An unforgivable sin. In judicial practice, even Confucianism is used as the basis for handling cases, and the book Chunqiu Judgment is one of the typical examples.
3. Moral condition restricts the development of legislation. Like before the Han Dynasty, morally? Three cardinal guides and five permanent members? And so on have not risen to the national legal provisions and legislative principles, but only decided the necessity of this morality in social reality.
4. Morality helps to fill the vacuum of legal adjustment. No matter how detailed the law is, there will always be places that cannot be taken care of, such as the cumbersome legal system and cumbersome items in the Qin Dynasty. Still stealing mulberry leaves, hiding (stealing) is not profitable? .
Second, the historical analysis of the relationship between law and morality in China.
According to the viewpoint of Marxist historical materialism, law is not born in human society, but only when the contradictions (mainly class contradictions) in human society are so intense that they cannot be solved by the power of habit and morality alone, tough measures are taken. The law is to maintain social order? Hard power? , pay attention to heteronomy, and morality is? Soft power? Pay attention to self-discipline Historical materialism holds that the class opposition in human society is only a historical phenomenon and will eventually disappear with the historical process. If the class is eliminated, the law will lose its objective material basis of existence, and its demise is a historical necessity. Taking this as an opportunity, the maintenance of social order can only rely on the power of morality.
(A) the evolution of the relationship between law and morality in ancient China.
In ancient China, the law was simplified to? Punishment? ,? Plain as water? It means fairness and justice. Morality was reduced to a complete set in the Western Zhou Dynasty at the latest? A gift? It is everywhere and all-encompassing; The relationship between the two is also determined as? Morality is the main punishment? . Therefore, the long-term mutual penetration and mutual supplement of the two shows the special phenomenon of moral legalization and legal moralization in the legal development of China.
1. Legalization of morality
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 law and national will with the help of legislative procedures, and make them standardized and institutionalized.
Judging from the history of China, the legalization of morality originated in the early Western Zhou Dynasty? Duke Zhou made a ceremony? , determine the basic principles of the ceremony? Kissing? 、? Respect? And make it legal, can it be realized? Rudeness is unsuccessful, rudeness is uneasy. . Rites and punishments are interlinked in nature and complementary in application. It is illegal to violate the law, and the ceremony is punished.
With the demise of the Western Zhou Dynasty, Zhou Li lost its dominant position in the whole country. What really laid the theoretical foundation for the relationship between law and morality in ancient China is Dong Zhongshu's thought of "taking morality as the main factor and punishment as the auxiliary factor", which proves that taking morality as the main factor and punishment as the auxiliary factor is in line with the operation law of heaven. This was an important link in the process of legalizing morality in ancient China, and it was adopted in the feudal era of the next two thousand years, which had a great influence not only on China and East Asia, but also on the world.
Later, the Tang dynasty continued and developed the trend of "taking morality as the main punishment" since the Han, Wei and Jin dynasties, formulated the guiding ideology of introducing law into rites according to the needs of rule, and finally completed the historical task of moral legalization, even? Do we have to be polite? Become the main evaluation of the Tang law. In the next 1000 years, the feudal ruling dynasties continued their rule and the implementation of the feudal system almost intact in accordance with the rules formulated by the Tang Dynasty. It was not until the arrival of modern China that they were forced to completely revise the legal classics in the late Qing Dynasty.
2. Moralization of law
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. The essence of moralization of law is to change from heteronomy to self-discipline and from legal constraint to moral constraint.
Undoubtedly, before the world history entered modern times, the ancient people in China were ahead in the moralization of law. It is impossible to regulate social life and communication only by law, even in today's highly developed civilization, not to mention in ancient China, where productivity is very backward. The moralization of law can maximize the scope of application of law while saving a lot of manpower and material resources. Once the law is preserved as a moral force, its influence is incredible. For example, China has lasted for two thousand years. Combining the two factors, we can see that the moralization of law is not only the result of moralization, but more importantly, under the historical conditions at that time, moralization of law is the best way to choose.
Third, take history as a mirror to promote the harmonious development of law and morality.
The ancients said:? Taking history as a mirror, can you know the rise and fall? . Through the above historical investigation and legal analysis of the relationship between morality and law in ancient China, we can get the following enlightenment from the previous questions:
(A), the conflict between love and law
There is no denying that this situation exists objectively in the real world, and the society ruled by law (whether under the autocratic rule of the Qin Dynasty? Legal society? , or the real society ruled by law that we are trying to build today) requires people to first consider whether their actions are in line with the law when dealing with problems; When judging a case, a judge can only rely on the existing laws, but not on the judge's discretion. This will inevitably lead to the law can not adapt to the new situation, and non-mandatory social norms such as morality can subjectively mediate new behavior phenomena. This is the drawback of the monistic legal system, that is, the lack of transition and buffer mechanism between the laws and morality formulated by the state leads to the rigidity, weakness and ruthlessness of the law, the separation and alienation of the law from the public psychology and social customs, and the sense of powerlessness and contempt for morality, which even encourages the violation of morality and accelerates the decline of morality. However, if the case is decided by reason, it will violate the principle of rule of law, and it is also very easy to put laws and regulations on the side. If we only rely on secular habits to try cases, we will return to the ancient feudal society? Chunqiu prison? 、? Convicted by fate? In the abyss. Therefore, only by adjusting the legal system can we find the relationship between law and morality in modern civilized society? Balance point? In order to realize the coordination between emotion and law, the coexistence of morality and law, and avoid the embarrassment of law and emotion.
(2) Emotion in law
Morality is the foundation of law, and law is the institutionalized practice of moral norms. Universal or individual legal principles, such as justice, fairness, equality, honesty and trustworthiness and observing good customs, are themselves a powerful part of human moral concepts. It is precisely because of the moral support that legal principles can play the role of human nature. If the law does not admit or abandon such moral factors, then the law or legal system has great defects, and it is doubtful whether it has vitality or how much vitality it has.
Good law shows that law should contain some moral value, so the concept of rule of law itself embodies the profound relationship between rule of law and morality. The law that has lost its moral foundation is an evil law, and the rule of evil law is fundamentally different from the spirit of the rule of law. The ancient Confucian ethics law in China embodies a mode of combining morality with law, that is, the moral norms generally recognized by the society are upgraded to laws and incorporated into the code of conduct enforced by the state. To solve people's moral vacancy and legal embarrassment in the real society, can we absorb the reasonable core of Confucian ethical law, use the law flexibly, inject moral blood into the rule of law, and build a country ruled by law with China characteristics? .
(3) Pay equal attention to Germany and France.
The thought of rule by law comes from the west, and the thought of rule by virtue comes from the traditional legal culture of China. The combination of the two conforms to the trend of combining root-seeking consciousness with global consciousness and combining nationality with the times. When we are obsessed with the inheritance and transplantation of law, the exploration, confusion and thinking of the localization and internationalization of law, please let us pull our perspective to the height of social regulation. We will suddenly find everything new and fresh, and find that when the western spirit of rule of law conquered us, the traditional spirit of rule of virtue was calling in the depths of history. It should be pointed out that although the rule of law in the west does not exclude morality, it undoubtedly ignores morality, especially the viewpoint of analytical school, while promoting the supremacy of law.
Austin argues that the law reflects or meets certain moral requirements, although it often does, but it is not an inevitable truth? . The widespread emotional crisis and moral decay in western society are proof; The traditional rule of virtue advocates that morality is the main punishment, and law is the vassal of virtue, which devalues the role of law and is not suitable for the development of the times. Therefore, we should sublate and transform them, extract their reasonable core, reorganize their structure and establish a brand-new system combining Germany and France.
Judging from the historical evolution of the relationship between morality and law, correctly handling the relationship between morality and law and finding the best balance point and combination point between them is one of the reasons why the prosperity of ancient China is much higher than that of other countries and regions. However, straightening out the contradiction between morality and law and exploring the factors that promote social progress at present are helpful to the great cause of rejuvenation.
References:
Zhou Wangsheng. Legal exploration [M]. Beijing: People's Publishing House, 2005.
[2] Han Mingde, Jurisprudence (M), Zhengzhou University Press, 2004.
Morality and law: the second article on the balance of interests in the conflict between law and morality
As the main social norm of human society, the conflict of interest between law and morality has always been a problem that society and legal circles attach great importance to. Based on the historical origin of the conflict between law and morality, this paper briefly analyzes the practical significance of correctly handling the conflict between law and morality, and briefly discusses the interest measurement of the conflict between law and morality through the analysis of two real cases in reality.
Key words: interest measurement, legal morality, the historical roots of the conflict between law and morality
(A) historical and cultural reasons
The conflict between law and morality is attributed to the ancient history and culture of China, and the main source is the ethical standard, which began to form in the Spring and Autumn Period and the Warring States Period, and was greatly influenced by Confucius? Ren? And then what? A gift? The influence of Confucianism makes the whole social life centered on ethics, that is, social morality under Confucianism. All thoughts and activities are carried out around ethics, even the laws at that time are no exception. With the development of the times, although ethical thoughts are far less profound than those in ancient times, many thoughts have penetrated into thousands of years of culture and still regulate people's thoughts and behaviors to a great extent. Once the formulated legal norms are inconsistent with this established social morality, it will inevitably have a certain impact on the trial of the case, reflecting the conflict between law and morality.
Realistic social reasons
At present, there will be such a situation in reality, that is, it will often appear in the trial of cases? Public opinion? Participate. Such cases are generally cases that seriously infringe on the public interest, and people tend to pay great attention to them. The reason for these concerns lies in people's sense of justice and the maintenance of social morality. The most extreme way to express public opinion is to petition, which is not a very new term in the real society. Once the petition is sent to the court, due to the pressure of public opinion, the judge will refer to public opinion in the trial to some extent, but the social morality of the representatives of public opinion will be different from the law to some extent, which directly reflects the conflict between law and morality, and this conflict will be reflected in the trial of specific cases, which will actually have an adverse impact on the trial of cases.
Second, the practical significance of correctly handling the conflict between law and morality
(A) the need to maintain the legal system
A basic requirement of the legal system is to form a complete legal system of all existing laws, and a better requirement of the legal system is to realize the law? Good law? Requirements,? Good law? It is not only reflected in the application of law, but also in the harmonious development with other social norms. The most important thing here is to achieve good compatibility with social morality. At the same time, the establishment of legal system and the operation of good law need the coordination of other social norms. Only when the conflict between law and morality is well resolved can the authority and unity of the legal system be well strengthened and maintained, and judicial practice can be well supported by the people. These are the objective requirements and necessary guarantees for the realization of the legal system in China.
(B) the need to maintain social stability
Justice is the ultimate solution to social contradictions, and it is its important task to make all cases that resort to justice get reasonable solutions. This determines the importance of the correct trial of the case for maintaining social stability. Because social morality is closely related to public opinion, if the cases of moral conflict are handled unfairly and the final judicial means fail, the parties may rely on self-help to solve the problem, which will not only fail to stop the lawsuit, but also lead to intensified contradictions, and some even lead to mass incidents, endangering social stability. Therefore, it is very important for social stability to correctly handle the conflict between emotion and law. Therefore, an important goal of case trial is not only to make the parties obey the law and judgment, but also to make the result of the case impeccable in reason, thus turning negative factors into positive factors and promoting social harmony and stability.
(c) The need to improve judicial efficiency.
Efficiency is one of the basic values of law. The conclusion of the first instance of a case and the entry into force of the judgment are the most ideal results. However, in judicial practice, especially in the trial of cases that conflict between law and morality, this ideal result is difficult to achieve, because the judgment of such cases is difficult to achieve the litigation purpose of both parties at the same time. In reality, most cases are appeals, and about 20% cases go to retrial. Often, the first trial of an uncomplicated case is several years or even longer, which invisibly increases the judicial cost and affects the basic values such as judicial justice. Correctly handling legal and moral conflicts will help both parties to reach an agreement and make the judgment take effect as soon as possible, thus greatly shortening the litigation time, saving judicial resources such as manpower, material resources and financial resources, and achieving the purpose of improving judicial efficiency.
Third, the real case analysis of the conflict between law and morality.
(1) Intentional injury in rights protection
On June 5438+ 10, 2005, Huang, a taxi driver in a city of Hunan Province, was robbed by robbers such as Jiang. When Jiang and other gangsters got off the bus and fled, Huang chased the taxi and knocked Jiang down, causing Jiang to be seriously injured and died. The robbers took Huang to court, and a district court in a city sentenced Huang to three years and six months in prison for intentional injury. Huang refused to accept the appeal and appealed to the Municipal Intermediate Court. The Intermediate Court ruled that the appeal was dismissed and the original judgment was upheld.
There is a big problem in the trial result of this case, which not only violates the main idea of criminal law, but also violates social morality. First of all, from a legal point of view, the reason why the court ruled that Huang intentionally injured was that Huang's behavior was not justifiable defense. The court held that Jiang escaped after the robbery, and Huang's driving again did not belong to defending against the ongoing illegal infringement, so his act of hurting others was not justifiable defense, but intentional injury.
This explanation is far-fetched, and it is often the most difficult to identify the illegal infringement in robbery, because the identification of robbery includes two aspects: one is the implementation of violence, and the other is the illegal infringement of property, that is to say, in our legitimate defense against robbery, we can't just think that the criminal suspect's violence against the parties is illegal infringement. In the process of escape, Jiang was still in a state of illegally infringing on Huang's property, so the robbery continued.
In the sense of social morality, people will obviously think that this is connivance of robbery when they see the trial results of such cases. At present, robbery is increasingly rampant in the real society, which seriously affects people's property safety. While people safeguard their own property, they also deal a heavy blow to the trial of cases, which will inevitably bring adverse public pressure. Although Huang's death was too serious, Huang didn't kill anyone intentionally, just to recover his property. Because this behavior was convicted of intentional injury, receiving such a heavy punishment will cause certain psychological harm to the people.
Often in such cases, involving theft, robbery and other cases, there will be some conflicts between law and morality more or less. Just like the above-mentioned cases cited by the author, many of our legal provisions on justifiable defense, especially the identification of excessive defense and excessive defense, cannot be judged by social morality. People's moral understanding of safeguarding the legitimate interests of individuals is likely to change from a legal point of view to improper defense or excessive defense. Therefore, the author believes that changing social morality is not something that can be achieved in a short time, and it is still necessary to refine and standardize legal provisions and relevant provisions on self-defense in order to achieve harmony with social morality as much as possible.
(2) Civil compensation under negotiorum gestio.
Women are neighbors. One day in February 2002, due to an emergency, Hu Rang took care of the three-year-old boy temporarily. Chen Mou, a warm-hearted man, readily agreed. However, while cooking in Chen Mou, the naughty boy unfortunately fell down and was stabbed in the right eye by a toy, which could not be cured, resulting in disability. Hu will eventually go to court and demand compensation of more than 654.38 million yuan for mental damages such as medical expenses. According to the relevant judicial interpretation of civil negotiorum gestio, the court decided to bear the main responsibility and compensate Hu for more than 60,000 yuan.
This case is a typical issue of negotiorum gestio. No matter what psychological considerations Chen Mou has, when he promised to take care of children for others, there is inevitably legal negotiorum gestio. Negotiorum gestio is not based on the agreement between the parties, but in the process of management, there will be corresponding management obligations. Once there is an omission in management, it will also bear certain civil liability for its adverse consequences. Therefore, in this case, due to Chen Mou's negligence, he failed to fulfill his qualified management obligations, thus disabling the child. Therefore, according to the relevant provisions of negotiorum gestio, he must bear certain legal responsibilities.
But in terms of social morality, there are great problems. Legally, Chen Mou has no obligation to look after the children, just because of his enthusiasm. His original intention was to help others and look after children, but this result was not what Chen Mou wanted. However, Chen Mou is enthusiastic about helping others, but in the end he has to bear a huge compensation of 60,000 yuan, which is totally incomprehensible to the general public. Such a trial result will not only seriously hurt people's enthusiasm for doing good deeds, but also affect the social atmosphere of the whole society to a certain extent.
Therefore, the author believes that in the trial of such cases, because it is a civil trial, there is a certain degree of freedom in itself. Therefore, while conducting trials with reference to legal provisions, we should also give full consideration to safeguarding social justice, treat such cases from the perspective of justice, and try our best to protect the rights of those who help others, so as to better safeguard legal justice and bring a good social atmosphere.
References:
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[2] Sun Xiaoxia. The substantive thinking of traditional judges in China. Journal of Zhejiang University (Humanities and Social Sciences Edition) .2005 (4).
[3] Liang Huixing. Referee's method. Beijing: Law Press. 2003。