Text/Ping Fan

As two different means of social adjustment, law and morality have different functions in adjusting social relations. If people don't have a universal moral recognition of the phenomenon of "self-destruction" and a heartfelt pursuit of being brave, even if "self-destruction is guilty" becomes a legal provision, there will be no good result.

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In view of the frequent phenomena of "not saving from danger" and "not saving from danger" in society, some scholars believe that citizens should have an unshirkable obligation to help dangerous situations within their own obligations, and this responsibility can be forcibly mentioned at the legal level. Some western countries have put moral issues such as "free from destruction" and "don't save in times of crisis" into the legal category. However, because the whole social control system pays too much attention to the law, it weakens other social control forces such as morality, and there is a phenomenon of "social legalization" that relies too much on the law, resulting in a high degree of legalization and moral decay.

The legalization of moral issues reflects the public's disappointment with moral norms and turns to compulsory legal means to integrate moral order. However, the moral appeal of "pan-legalization" means that law is replaced by morality, which is not in line with the purpose and ideal goal of human creation of law. On the other hand, the financial resources of any country cannot support all the law enforcement costs after the legalization of morality.

The general law of the origin of law tells us that the origin of law is a process from being mixed with moral norms and religious norms to being relatively independent. Law bears the responsibility of maintaining social good customs and provides a solid backing for morality. Morality has always been accompanied by the historical development of human society. Although it does not have the coercive power of the law, it is more lenient than the law in a sense. Morality is often the direct source of a certain part of the law, and to a certain extent, it plays a binding role in the law. Law and morality are like two wheels of a car and two wings of a bird. Their relationship is an eternal topic in history and reality.

First, what is morality?

Engels said: "All previous moral theories are, in the final analysis, the products of social and economic conditions at that time. Society is still advancing in class opposition until now, so morality is always class morality. " This shows that the content of morality is ultimately determined by economic conditions and changes accordingly with the development of economy; Different social groups based on different material living conditions have different moral concepts, and the morality of class society has class nature. Therefore, we can simply summarize morality as follows: morality is the sum of ideas, principles and norms about good and evil, honor and shame, justice and injustice, justice and prejudice, barbarism and humility of natural persons living under certain material living conditions, or it is a comprehensive system of contradictions and unity. Morality belongs to the category of social ideology, which is the sum of people's views, principles and norms on good and evil, beauty and ugliness, justice and injustice, glory and shame, justice and partiality, civilization and barbarism. It is a code of conduct system that relies on public opinion, people's inner beliefs, habits, traditions and educational strength to ensure compliance and implementation. From the perspective of historical materialism, morality is rooted in certain material living conditions. Morality grasps the real world by evaluating good and evil. The implementation and coercion of morality depends not on the coercion of the state, but on people's ideas, public opinion and good customs. When adjusting the interest relationship between individuals and others, individuals and social collectives, morality does not emphasize the personal interests of people like other social norms, but emphasizes the interests of others and social collectives. Morality has the ability to guide and correct people's behavior and activities through evaluation, so as to coordinate the relationship between people. Morality can create public opinion, form social fashion, establish moral concepts, shape rational personality and cultivate people's moral quality and moral concepts through evaluation and encouragement. Morality reflects the interests of individuals, others and society, and the results are moral standards, moral ideals and so on.

There is no eternal morality and no eternal law. In today's society, ruling groups representing different interests still exist, but the class interests they represent are fundamentally different or antagonistic. Different ruling groups have their own class interests and morals suitable for their class interests. In essence, the law is that the overall will of the ruling group rises to the will of the state. Since law is the embodiment of will, and morality certainly belongs to the category of will, then law certainly reflects the morality of the ruling class.

Second, what is the law?

Law is essentially the rise of the overall will of the ruling group to the will of the state, and it is the embodiment of the will of the state and the will of the ruling class; Law is a formal and officially determined code of conduct formulated or recognized by the state and guaranteed by the state's coercive power. The content of law is restricted by certain social factors and ultimately determined by certain social and material living conditions. Law has the characteristics of standardization, universality, procedure, national will and compulsion. The law plays a guiding role in individual behavior. As a standard of behavior, law has the judgment function of judging and measuring the legality of other people's behavior. With the existence of laws, people can predict how they will behave with each other. Through the implementation of the law, the law can have an educational effect on the behavior of ordinary people. Forcing offenders to abide by the law through sanctions against illegal acts. Starting from the essence and purpose of law, law plays the role of class rule and the function of executing social public affairs in social and economic life, political life and ideological and cultural life.

Third, the dialectical relationship between morality and law.

The emergence of law is inextricably linked with morality. Law is the embodiment of will, and morality belongs to the category of will, so law certainly reflects the morality of the ruling class. From the perspective of morality, we can define law as: subjectively, law is the embodiment of the will of the state and the will of the ruling class; Objectively speaking, the content of law is determined by certain social and material living conditions. The former embodies the national will and the ruling class will of the law, while the latter embodies the material constraints of the law. Law is the contradictory unity of these two aspects. Law and the morality of the ruling class are essentially the same, and their similarities are as follows: both belong to the superstructure on the same economic basis and are determined by the same economic basis; The guiding ideology of the two is the same; Both of them embody the same class will and the same historical mission.

(A) the difference between law and morality

Law and morality belong to different categories of superstructure. The former belongs to the category of system, especially the written law is more systematic and institutional; Morality, on the other hand, belongs to the category of social ideology, which is spontaneous and contractual.

2. The conditions for the emergence and formation of law and morality are different. In primitive society, there were no laws in the modern sense, only moral norms or religious taboos, or clan habits. Law came into being at the end of primitive society, accompanied by the disintegration of clan system and the emergence of private ownership and class. Law refers to the law that the ruling class uses state power and is formulated or recognized by state organs in accordance with legal procedures and authority. The generation of morality is synchronous with the formation of human society, which is gradually developed and spontaneously formed by people in the same material production and life, and generally does not need special personnel and institutions to formulate and promulgate it. Morality is the most basic normative system to maintain a society. Without ethics, the whole society will fall apart.

3. Law and morality have different manifestations. Law is a code of conduct formulated or recognized by the state, with clear content, which is mainly manifested in various normative documents formulated by state organs, such as constitution, laws, regulations and rules. The content of moral norms exists in people's consciousness and public opinion, and is expressed through people's words and deeds. It generally does not resort to words, and its content is principled and abstract.

4. The normative contents of law and morality are different. The contents of legal norms are mainly rights and obligations, which generally require equality. Without rights, there is no obligation, and without obligations, there is no right. Morality emphasizes the obligations and responsibilities to others and social collectives, that is, what should or should not be done, and does not necessarily require society or others to assume reciprocal obligations to them.

5. The structures of legal norms and moral norms are different. The structure of legal norms is hypothesis, handling and sanctions or behavior patterns and legal consequences; Morality has no specific sanctions or legal consequences.

6. The mechanism of law and morality is different. The implementation of the law is guaranteed by the state's coercive force; Morality mainly depends on public opinion, people's inner thoughts, publicity and education, and public condemnation.

7. The adjustment scope of law and morality is different. From a deeper perspective, morality not only adjusts people's external behavior, but also adjusts people's motives and internal activities. It requires people to act according to noble intentions and pursue goodness for the sake of goodness. Although the law also considers people's subjective fault, if there is no illegal act, the law does not punish the subjective fault itself, that is, there is no "ideological crime"; In breadth, legal adjustment is generally moral adjustment. Of course, there are also some legal areas that hardly include any moral judgment, such as special procedure rules, circulation rules of bills, and organizational rules of the government. In these fields, the guiding concept of law is convenience and efficiency, not morality.

(B) the relationship between law and 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 adjustment, which complement each other and promote each other. Its relationship is reflected in:

1. The law and morality of the ruling class are the embodiment of the overall will of the ruling class. The law and morality of the ruling class permeate each other. Law and morality complement each other and serve the overall interests of the ruling class.

2. Law is an effective means to spread morality. 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.

3. Morality is the evaluation standard and driving force of law. First of all, there is a natural connection between morality and law, and the cultivation of moral consciousness is helpful to people's awareness of obeying the law; The certainty of law leads to the lag of law, and the development of morality can promote the progress of law; Law is the minimum requirement for ordinary people, but human development needs noble people to navigate. 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. Secondly, 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.

4. Morality helps to fill the vacuum of legal adjustment. Moral supplementary 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.

5. 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 a word, law and morality are different, irreplaceable, confusing and can not be ignored. At the same time, law and morality are interrelated and complementary in function, and they are both important means of social adjustment.

Fourth, abide by the dual regulation of morality and law.

The emergence of law itself is inextricably linked with morality. Morality, as a means of social adjustment, can't quit the historical stage. "Morality often becomes the basic material of law, and law often consolidates some morality; Where morality cannot be achieved, it is adjusted by law, and where law cannot be achieved, it is adjusted by morality. " Even the mandatory role of law often needs to be played through people's inherent moral beliefs, otherwise it will be flawed. Only this compulsion makes it more direct, rapid and relatively stable. 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. As two independent entities, law depends on the existence of morality, but it is independent and does not depend entirely on moral norms; Generally speaking, morality supports the establishment of the legal system and maintains people's general sense of identity with the legal system. Under normal circumstances, legal rules that conform to moral norms are more acceptable and more vital. Then such a legal system will be relatively stable. The reason why legal norms are observed by the general public is not only because there is a so-called national compulsion behind these norms, that is, people obey the law because they are afraid of being punished by the law. More importantly, these legal norms conform to moral principles, and people believe their correctness, rationality and justice, that is, laws have inherent moral values. Even if the so-called "psychological compulsion" is realized, it needs to be measured by people's inner feelings and moral standards. "If you want to impose a system of rules on someone by violence, you must have enough members to accept it voluntarily; Without their voluntary cooperation, this creative authority, the coercive power of law and government cannot be established. " Therefore, in view of the phenomenon of "self-destruction" in society, if people do not have universal moral recognition and sincere pursuit of being brave, even if "self-destruction is guilty" becomes a legal provision, there will be no good result. Because not all laws are mandatory, and laws are not always reasonable and fair.

At the same time, the important role and other functions of law in building and maintaining social order are often realized through moral functions. Moreover, the best way to realize the legal function is to internalize the value of legal norms into human moral beliefs through long-term social practice, and form a mindset after people generally accept it. And use this mentality to dominate your behavior. Because this mentality is both legal and moral, the behavior under its control will also be legal and moral. Then the ultimate goal of law regulating society will be achieved, and its role will be realized. There is a simple reason. In this case, the behavior of observing the dual regulation of morality and law must be carried out in the direction of the development of social relations, rather than destroying it.

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. According to China's national conditions, the relationship between law and morality can be described as follows: First, the laws within a country and the morality of the ruling class are the embodiment of the overall will of the ruling class. Second, the morality of law and the morality of the ruling class permeate each other. Loyalty, filial piety and chastity are the moral norms of China feudal dynasty to maintain its class rule, which are embodied in its legislation as "ten evils". In judicial practice, even Confucianism is used as the basis for handling cases, and the book Chunqiu Judgment is one of the typical examples. Third, law and morality complement each other and serve the overall interests of the ruling class. Mencius said in "Stay upstairs" that "law is not enough to stand on its own feet", and other means are needed, among which law is an important means. Fourth, the moral condition restricts the development of legislation. Fifth, morality plays a decisive role in promoting the implementation of the law. Sixth, morality helps to make up for the vacuum of legal adjustment. Seventh, the law must be based on morality. Eighth, law is an effective means to spread morality.

References:

1. yang, the history of legal thought in China, Peking University publishing house, 1998, p. 49.

2.[ Germany] Hegel's Philosophy of History, Beijing Sanlian Bookstore, 1956 edition, the first 1 1 page.

3. Lu, editor-in-chief, Introduction to Law, Higher Education Press, 200 1 edition.

4. Liu, Law and Morality: Difficult Problems in the Process of Rule of Law in China [J], Rule of Law and Social Development, 1998( 1).

(The author is the editor-in-chief of Hubei Daily Media Group)