Keywords law; Morality; Fuller; New natural law school
American jurist fuller (Lon L? Fuller), one of the main representatives of the new natural law school after World War II, discussed the relationship between law and morality in his masterpiece The Morality of Law. This book is also the product of academic debate between Fuller and Hart. Fuller and hart's goal is. Are law and morality separate or combined? Start a debate. Hart defends the separation of positivism and thinks that law and morality can be separated. Fuller, on the other hand, emphasized that law and morality are inseparable from the moral basis of legal order and the morality of law itself. To refute the academic point of view of empirical law at that time? The separation of morality and law? Fuller wrote a book. From the book? The content of this book mainly revolves around the dissatisfaction with the relationship between law and morality in the existing literature? You can see the author's starting point for writing this book.
Did Fuller pass the certificate? Laws cannot be separated from the purpose of making laws? To demonstrate? The inseparability of law and morality? This view. Fuller believes that if we only know a rule and don't know the purpose of making it, in this case, we can't know what this rule means, and then we don't know what it is at all. Only by clearly understanding the purpose of the observed person can we understand the meaning of his behavior and then understand the behavior itself.
In The Morality of Law, Fuller proved that law and morality are inseparable from the purpose of law and then to the morality of law. His proof thought is summarized as follows: legislators make laws to achieve a certain purpose. Because we can morally evaluate the legislative purpose and motivation of legislators, the law created for a certain purpose is moral.
Fuller thinks that there is a connection between law and morality, but he doesn't think that all morality is connected with law. For example, it is moral to help the poor, but is this morality related to the law? The answer is none. In The Morality of Law, Fuller elaborated on the morality associated with law. From the level, morality is divided into the morality of desire and the morality of obligation. The former demands what people must do, which is the lowest standard of human behavior; The latter is to pursue the best and ideal degree that people can achieve on this basis. What is the performance of the former? How do you have to behave? Or? How should you behave? ; What is the performance of the latter? What was your best performance? . The former will punish or negatively evaluate those who do not comply; The latter will not punish people because they can't reach the required level.
Fuller's other classification of legal morality is to divide it into external morality of law and internal morality of law. The former focuses on the substantive purpose of law, while the latter focuses on procedural natural law; The former is some values believed by traditional natural law, while the latter is a value system located inside the law, which consists of a series of procedural legal principles. Fuller believes that legislative activities must conform to certain principles. These principles are summarized in the book Morality of Law as follows: openness, universality, clarity and clarity, consistency, stability and continuity between official acts and legal provisions, non-retroactivity, no contradictory provisions and no requirement for the impossible. Fuller believes that a law that violates the inherent morality of law, that is, the above principles, violates the essence of law and does not think it is a real law. The theory of internal morality of law is a breakthrough in the boundaries of traditional natural law and a transcendental development of natural law.
As for the purpose of laws, Fuller treats them with a neutral attitude. Fuller thinks they are not necessarily good or bad. The background of Fuller and Hart's thinking and argument about the morality of law is the Nuremberg trial after the war. The judicial workers who worked for * * in World War II defended themselves in this trial, and they were only applying the laws enacted by * * to conduct judicial trials. In World War II, * * openly trampled on civil rights in the form of law. It can be seen that the law will also produce evil laws because of the pursuit of goals that are inconsistent with fairness and justice. As for the purpose of law, Fuller just shows that it is inseparable from the whole law. If we look at the purpose of law separately from the rules of law, we will not be able to distinguish whether the rules of law constitute, no matter whether the purpose pursued by law is good or evil. So fuller admitted it? Evil law is also law? .
Fuller's view is hidden in meditation, which is a breakthrough and development of traditional natural law. What influence does his academic viewpoint have on the construction of China? A society ruled by law? It is also of great significance. China has been implementing the basic strategy of governing the country according to law for fifteen years. While some achievements have been made, the pace of building a society ruled by law in China is still advancing. While implementing the basic strategy of governing the country according to law, we should also pay attention to the legitimacy and fairness of the laws we implement. Fuller's exposition on the morality of legislative purpose and his emphasis on procedural justice can make? Loyal to the law? Only when the ideal becomes meaningful can it be truly realized? Loyal to the law? Ideal.
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Fuller, translated by Ge Zheng. Morality of law [M]. The Commercial Press. 2005
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