The relationship between morality and law has always been an enduring topic among jurists, and it has important practical significance in every historical stage. The following is a sample essay on ethics and law that I have compiled for you. You are welcome to read and refer to it! Essay on Ethics and Law 1
On the relationship between law and morality
Abstract: Law and Morality is the two forces that govern social development. They are different from each other and related to each other. In the course of our country's history, law and morality complement each other and influence the direction of history on the basis of economics and politics. In reality, the conflict between law and morality is fierce, which prompts us to look at the present from the past and seek ways to solve practical problems from the handling of ancient legal and moral relationships.
Keywords: law, morality, 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 a process of interactive evolution between the legalization of morality and the moralization of law. Moral legalization emphasizes the transformation of human moral concepts into laws, that is, the formation process of good laws; legal moralization emphasizes the internalization of laws into people's quality and morality. However, no matter how wide the legal net is, there will always be fish that slip through the net; no matter how broad the scope of legal adjustment, there will always be areas beyond the reach of the whip. In this sense, wherever the law falls short, morality comes into play, and it is impossible for the law to completely replace morality. Obviously, the ancient Chinese idea of ??combining etiquette and law, with virtue as the mainstay and punishment as supplementary, provides a feasible historical verification for our current governance model of combining virtue and law.
1. Legal analysis of the relationship between morality and law
(1) Concepts and characteristics of law and morality
Law is formulated or recognized by the state and is A system of behavioral rules guaranteed by state coercion that reflects the will and interests of the class that controls the state determined by the material living conditions of a certain society. It confirms, maintains and develops the rights and obligations between people by stipulating the rights and obligations between people. Social relations and social order that are conducive to the class that controls state power. Morality is the sum of people's concepts, principles and norms about good and evil, justice and injustice, honor and shame, justice and partiality. It relies on social public opinion, traditional habits and the power of people's beliefs to ensure its completion. Morality mainly reflects and adjusts the economic relations and other social relations of society from the interests of individuals and society as a whole.
Although there have been huge differences in the laws of various 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 include: 1. Law It is a general, universal, and rigorous code of conduct; 2. The law is a code of conduct formulated and recognized by the state; 3. The law is a code of conduct that the state confirms rights and obligations; 4. The law is a code of conduct that is enforced by the state as a guarantee . Similarly, moral differences do not prevent them from having the following consistent characteristics: 1. Moral norms are non-institutionalized norms; 2. Moral norms do not and do not use coercive means; 3. Moral norms are an internal ization norms. Since the two have always played a huge role in the development of human society, it is necessary to conduct legal analysis on them.
(2) The difference between law and morality
1. The conditions for the emergence of law and morality are different. Law is the use of state power by the class in power, and is formulated or recognized by state agencies in accordance with legal procedures. It is the will of the ruling class elevated to the will of the state, with the characteristics of consciousness; morality is the material production and development of people in the same society. Those that are gradually and spontaneously developed in life generally do not need to be promulgated and formulated by specialized agencies and personnel.
2. The contents of legal and moral norms are different. The content of legal norms is mainly rights and obligations, and such rights and obligations are corresponding; morality has higher requirements on people than the law. It must investigate whether the motivations of people's actions are good and emphasize the performance of others and the collective society. Obligation, taking responsibility, does not necessarily require society or others to bear the same amount of obligations.
3. The expressions of law and morality are different. Laws are mainly represented by various normative documents formulated by relevant state agencies; while morality exists in people's consciousness and public opinion.
4. The adjustment ranges of law and morality are different.
What the law adjusts are social relations that are related to fundamental and important interests and require the intervention and guarantee of state power; the scope of moral adjustment is much wider than the scope of legal adjustment.
5. The ways and means of implementing law and morality are different. The implementation of the law relies on the coercive power of the state; the implementation of morality mainly relies on the power of public opinion and education, people's consciousness, social groups, and the inner self-enforcement of the actor.
(3) The connection between law and morality
There are two main views on the connection between law and morality: Positivist jurisprudence believes that law is the order of the country’s sovereign. A "closed logical system", there is no necessary connection between law and morality, between "actual law" and "should be law"; natural law believes that only law that embodies morality is law with legal quality .
China is different from other countries in that it has its own special national conditions, and the relationship between law and morality also has specific meanings and understandings. Combined with China's national conditions, the relationship between law and morality is described as follows:
1. The laws and the morality of the ruling class within a country are both manifestations of the overall will of the ruling class. We know that morality is class-based, and law is also class-based. Both reflect the will and interest requirements of the ruling class, and the only difference is in their external manifestations.
2. The law and the morality of the ruling class penetrate each other. Loyalty, filial piety, and justice are the moral norms used by Chinese feudal dynasties to maintain their class rule. They are reflected in their legislation as "heinous" and unpardonable crimes. In judicial practice, Confucian teachings are even used as the basis for handling cases. The book "Spring and Autumn Jue Jie" is a typical example.
3. The moral status restricts the development of legislation. For example, before the Han Dynasty, the "three cardinal principles and five constant principles" in morality were not elevated to national legal provisions and legislative principles, but only when the actual situation of society determined the need for such morality.
4. Morality helps to fill the vacuum of legal adjustment. No matter how detailed the laws are, there will always be areas that cannot be taken into account. For example, the legal system of the Qin Dynasty was cumbersome and the entries were complicated, or illegally harvesting mulberry leaves from people, and Zang (the stolen goods) did not make a penny.
2. Historical analysis of the relationship between Chinese law and morality
According to Marx’s materialist view of history, law does not inherently exist in human society; Tough measures are taken when the contradictions in human society (mainly class contradictions) are so intense that they cannot be resolved purely by relying on the power of custom and morality. Law is the "hard power" to maintain social order and focuses on heteronomy, while morality is "soft power" and focuses on self-discipline. Historical materialism believes that the phenomenon of class antagonism in human society is only a historical phenomenon and will eventually be eliminated with the process of history. If classes are eliminated, law will lose the objective material basis for its 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.
(1) The evolution of the relationship between law and morality in ancient China
In ancient China, law was summarized as "punishment", "as flat as water", with fairness and justice. righteous. Morality was summarized into a complete set of etiquette at the latest in the Western Zhou Dynasty, which is ubiquitous and all-encompassing; the relationship between the two was also determined as "morality dominates and punishment assists". Therefore, the long-term mutual penetration and complementation of the two reflect the special phenomenon of moral legalization and legal moralization in the development process of Chinese law.
1. The legalization of morality
The legalization of morality mainly focuses on the legislative process, which means that legislators use certain moral concepts and moral norms or moral rules to legislate The procedure is expressed in the form of law and national will and is standardized and institutionalized.
Judging from the history of China, the legalization of morals originated from the "Zhou Gong System of Rites" in the early Western Zhou Dynasty, which determined the basic principles of etiquette of "kinship" and "respect for respect" and tended to legalize them. If a country is rude, it will fail; if the country is rude, it will not be peaceful. Etiquette and punishment are similar in nature and complementary in application. Violation of etiquette is illegal, and deviating from etiquette is punishable.
The Zhou rites lost their dominant position in the country with the demise of the Western Zhou Dynasty. What truly laid the theoretical foundation for the legal and moral relationship in ancient China was the Han Confucian Dong Zhongshu’s thought of morality as the main punishment and punishment as auxiliary, based on the principle of Yin and Yang and the five elements complementing each other. Demonstrate that virtue as the main punishment and auxiliary punishment are in line with the laws of the operation of heaven. This was an important step in the process of moral legalization in ancient China. This principle was adopted in the feudal era for the next two thousand years. Its influence was huge not only on China and East Asia, but also on a global scale.
Later, the Tang Dynasty continued and developed the trend of morality as the mainstay and punishment as supplementation since the Han, Wei, and Jin Dynasties. According to the needs of governance, it formulated the guiding ideology of introducing law into etiquette, and finally completed the historical task of legalizing morality. As a result, "Yiquanli" has become the main evaluation of Tang law. For more than a thousand years after that, the feudal ruling dynasties of all dynasties continued their rule and implemented the feudal system almost unchanged according to the rules set by the Tang Dynasty. It was not until the advent of modern China that they were forced to At the end of the Qing Dynasty, legal texts were comprehensively revised.
2. Moralization of law
The so-called moralization of law mainly focuses on the process of abiding by the law, which means that legal subjects internalize abiding by the law as a moral obligation and use morality to Duties treat legal obligations. The essence of legal moralization is to shift from other-force restraint to self-restraint, and from legal restraint to moral restraint.
There is no doubt that before world history entered modern times, the ancient Chinese people were leading in their achievements in the moralization of law. Simply relying on the law to regulate social life and interactions is impossible even today with highly developed civilization, let alone ancient China with very backward productivity? Moralizing the law can save money. Under the conditions of a large amount of manpower and material resources, the scope of the law is expanded to the greatest extent. Once the law is preserved as a moral force, the length of time its influence is maintained is also incredible. For example, China has maintained it for two thousand years. Combining the two factors, we can see that the moralization of law is not only the result of the legalization of morality, but more importantly, it is the best way to choose under the historical conditions at that time.
3. Use history as a mirror to promote the harmonious development of law and morality
The ancients said: "Using history as a mirror, we can know the rise and fall." Through the above historical investigation of the relationship between morality and law in ancient China and the legal analysis of the relationship between the two, the following enlightenments can be obtained for the previous issues:
(1) Conflict between emotion and law
It is undeniable that this situation exists objectively and in large numbers in the real world, and the rule of law society (whether it is the "law society" under the premise of the autocratic rule of the ancient Qin Dynasty, or the real society we are working hard to build today (A society governed by the rule of law) requires people to first consider whether their behavior complies with the provisions of the law when dealing with problems; when judges judge cases, they can only base their decisions on current laws and cannot rely on the judge's discretion. This will inevitably lead to the inability of the law to adapt to emerging situations, while non-mandatory social norms such as morality can mediate emerging behavioral phenomena based on their subjectivity. This is the shortcoming of the unitary legal system, that is, the lack of transition and buffering mechanisms between national laws and morality has resulted in the rigidity, powerlessness and coldness of the law, and has resulted in the disconnection between the law and public psychology and social customs. The estrangement also creates a sense of moral powerlessness and contempt, and even encourages moral violations and accelerates the decline of morality. However, if the case is decided based on reason, it will violate the principle of the rule of law, and it will easily lead to overestimating laws and regulations and judging cases based only on secular habits. This will return to the "Spring and Autumn Judgment" and "Judgment of Prisons" in ancient feudal society. Falling into the abyss of condemnation. Therefore, only by making adjustments to the legal system and finding the "balance point" between law and morality in modern civilized society can we achieve the coordination of emotion and law, the coexistence of morality and law, and avoid the embarrassment of law and emotion.
(2) Emotions in the law
Morality is the basis of law, and law is the institutionalized practice of moral norms. Universal or individual legal principles such as justice, fairness, equality, good faith, and observance of good customs are themselves powerful components of human moral concepts. It is also because of the support of morality that legal principles can play the role of human nature. If the law does not recognize or reject such moral factors, then the law or legal system is deeply flawed, and it is doubtful whether it has vitality or to what extent it has vitality.
Good law shows that law must contain certain moral values, so the concept of the rule of law itself reflects the profound relationship between the rule of law and morality. Laws that have lost their moral foundation are evil laws, and the rule of evil laws is fundamentally inconsistent with the spirit of the rule of law. The Confucian ethical law in ancient my country embodies a model of combining morality and law, that is, the moral norms generally recognized by society are elevated to laws and incorporated into behavioral norms enforced by the state. To solve people's moral deficiency and legal embarrassment in real society, can we draw on the reasonable core of Confucian ethical law, apply the law flexibly, inject moral blood into the rule of law, and build a country ruled by law with Chinese characteristics? .
(3) Pay equal attention to morality and law
The concept of rule of law comes from the West, while the rule of morality comes from traditional Chinese legal culture. The combination of the two conforms to the combination of root-seeking consciousness and global consciousness. The trend of combining national character and contemporary character. 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 bring our perspective to the level of social regulation. Our eyes will suddenly light up and our ears will be refreshed, and we will find that when the Western spirit of rule of law conquers us, the traditional spirit of rule of virtue is calling from afar in the depths of history. It should be pointed out that although the Western rule of law does not exclude morality, it undoubtedly ignores morality intentionally or unintentionally while advocating the supremacy of law. Among these, the claims of the analytical legal school are the most prominent.
Austen argued: "The law reflects or conforms to certain moral requirements. Although in fact this is often the case, this is not an inevitable truth." The common emotional crisis and moral decay in Western society are clear evidence; the traditional rule of virtue advocates that virtue is the mainstay of punishment and law is a tributary of morality, which devalues ??the role of law and is not incompatible with the development of the times. Therefore, both must be sublated and transformed, extracting their respective reasonable cores, reorganizing their structures, and establishing a new system that combines Germany and France.
Judging from the evolution of moral and legal relationships in history, correctly handling the relationship between Germany and France and finding the best balance and combination point between the two is exactly how prosperous China was in ancient times. One of the reasons why it is far higher than that of other countries and regions. At present, sorting out the contradictions between morality and law and discovering the factors that promote social progress will help the great cause of rejuvenation.
References:
[1] Zhou Wangsheng. Exploration of Legal Principles [M]. Beijing: People's Publishing House, 2005 Edition
[2] Han Mingde, "Jurisprudence" 》(M), Zhengzhou University Press, 2004 edition of Moral and Legal Papers Part 2
On the Weighing of Interests in Conflicts between Law and Morality
Abstract Law and morality are the main social norms of human society , The conflict of interests between people has always been an issue that society and the legal community attach great importance to. This article starts from the historical roots of the conflict between law and morality, briefly analyzes the practical significance of correctly handling the conflict between law and morality, and makes a brief analysis of the interests of conflicts between law and morality through the analysis of two real cases in reality. Discussion.
Keywords interest measurement, legal morality 1. Historical roots of the conflict between law and morality
(1) Historical and cultural reasons
The conflict between law and morality, Attributable to China's history and culture since ancient times, the main root is the ethical standard. The ethical standard began to be formed during the Spring and Autumn Period and the Warring States Period. To a large extent, it was influenced by Confucius's "benevolence" and "propriety" and integrated the entire social life. All centered on ethics, that is, social morality under Confucianism. All thoughts and activities revolved around ethics, even the laws at that time were no exception. With the development of the times, although ethical ideas are far less profound than in ancient times, many ideas have still penetrated into thousands of years of culture and still regulate people's thoughts and behaviors to a large extent. Once laws are formulated When norms are inconsistent with this conventional social morality, it will inevitably have a certain impact on the trial of the case, reflecting the conflict between law and morality.
(2) Realistic social reasons
In reality, there will be such a situation, that is, the participation of "public opinion" often occurs in the trial process of a certain case.
Such cases are generally cases that seriously violate the interests of the public, and the public often pays great attention to them. The reason for this attention lies in people's sense of justice and the maintenance of social morality. The most extreme way to express public opinion is through petitions, which is not a new term in real society. Once a petition is sent to the court, due to the pressure of public opinion, the judge will invisibly refer to public opinion to a certain extent during the trial. However, the social morality of public opinion representatives will diverge from the law to varying degrees. This disagreement will directly reflect the conflict between law and morality, and this conflict will be reflected in the trial of specific cases and will have a negative impact on the trial of the case. The impact is actually detrimental.
2. The practical significance of correctly handling conflicts between law and morality
(1) The need to maintain the legal system
One of the basic requirements of the legal system is to The existing laws form a complete legal system, and the better requirement of the legal system is to realize the "good law" requirements of the law. "Good law" is not only reflected in the application of the law, but also reflected 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 the legal system and the operation of good laws require the cooperation and 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. , judicial practice can gain good support from the public, and these are the objective requirements and necessary guarantees for the realization of the legal system in our country.
(2) The need to maintain social stability
The judiciary is the final means of resolving social conflicts, and it is an important task for it to strive for reasonable resolution of all cases that resort to justice. This determines the importance of correct trial of cases in maintaining social stability. Since social morality is closely related to public opinion, if moral conflict cases are handled unfairly and the final means of justice is ineffective, the parties may rely on self-relief to solve the problem. This will not only fail to achieve the purpose of settling lawsuits and disputes, but will also lead to intensification of conflicts. In some cases It may even lead to mass incidents and endanger social stability. Therefore, the ability to correctly handle conflicts between emotions and laws is crucial to social stability. Therefore, an important goal of case hearing is not only to make the parties obey the law and the judgment, but also to make the outcome of the case reasonable and impeccable. Only in this way can negative factors be turned into positive factors and promote social harmony and stability.
(3) The need to improve judicial efficiency
Efficiency is one of the basic values ??of law. The first instance of the case is concluded and the judgment takes effect. This is the most ideal result. However, in judicial practice, especially in the trial of cases involving conflicts between law and morality, this ideal result is difficult to achieve because the judgment of such cases cannot simultaneously achieve the litigation purposes of both parties. In reality, the vast majority of cases are appealed, and about 20% of cases enter retrial. Often the first trial of an uncomplicated case takes several years or more than ten years, which invisibly increases judicial costs and affects basic values ??such as judicial fairness. . Properly handling legal and moral conflicts will help both parties reach a consensus and make the judgment effective as soon as possible, thereby greatly shortening the litigation time, saving human, material, financial and other judicial resources, and achieving the purpose of improving judicial efficiency.
3. Analysis of realistic cases of conflict between law and morality
(1) Intentional harm in safeguarding one’s own rights
In January 2005, a city in Hunan Province The taxi driver Huang was robbed by the robbers Jiang and others. When Jiang and the gangsters got out of the car and fled, Huang chased him with his car. The taxi knocked down Jiang and Jiang died of serious injuries. The robber took Huang to court, and a district court in a certain city sentenced Huang to three years and six months in prison for intentional injury. Huang was dissatisfied and appealed to the Intermediate Court of a certain city. The Intermediate Court ruled that the appeal was dismissed and the original judgment was upheld.
There are big problems with the trial result of this case, which not only violates the purpose of criminal law, but also violates social morality. First of all, from a legal perspective, the reason why the court ruled that Huang intentionally caused harm was mainly because it determined that Huang’s behavior did not constitute self-defense. The court believed that Jiang’s illegal conduct was over when he fled after the robbery, so Huang drove the car again. The injury is no longer a defense against an ongoing unlawful infringement, so the act of injuring someone is not a legitimate defense but an intentional injury.
This explanation is very far-fetched. Unlawful infringement in robbery is often the most difficult to determine, because the identification of robbery includes two aspects: one is the implementation of violence, and the other is the destruction of property. Unlawful infringement, which means that in our legitimate defense against robbery, we cannot simply think that it is illegal infringement when the criminal suspect commits violence against the client. During the process of escaping, Jiang still violated Huang's property. In a state of illegal infringement, the robbery continues, so Huang's behavior still falls within the category of legitimate defense.
From a social moral perspective, it is obvious that when people see the trial results of such cases, they will think that this is a kind of connivance for robbery. At present, robbery is becoming increasingly rampant in the real society, which has seriously affected people's property safety. When people protect their own property, they also deal a heavy blow to the trial of the case, which is bound to bring adverse pressure from public opinion. Although the consequences of Huang's death were too serious, Huang had no intention of killing, and was only trying to recover his property. Being sentenced to intentional injury for this kind of behavior and receiving such a heavy penalty has a negative impact on the public's psychology. Will cause a certain amount of damage.
Often in such cases, involving cases such as theft and robbery, there will be more or less conflicts between law and morality. Just like the above-mentioned cases cited by the author, Many of our legal provisions on legitimate defense, especially the identification of excessive and improper defense, cannot be judged by social morality. The maintenance of legitimate personal interests that people understand in morality is likely to be derived from From a legal perspective, it becomes improper defense or excessive defense. Therefore, the author believes that changing social morality is not something that can be achieved in the short term. Therefore, legal provisions and relevant provisions on legitimate defense should be refined and standardized to achieve as much consistency as possible with social morality. .
(2) Civil compensation under no-cause management
Women Hu and Chen were neighbors. One day in February 2002, Hu asked Chen to take over for a temporary emergency. She temporarily took care of the three-year-old boy, and Chen, being a warm-hearted person, agreed wholeheartedly. However, when Chen took time to cook, the naughty boy fell down and was poked in the right eye by a toy, which could not be cured and became disabled. Hu finally took Chen to court, demanding compensation of more than 100,000 yuan for medical expenses and mental losses. The court, based on the relevant judicial interpretation of civil no-cause management, determined that Chen was primarily responsible and compensated Hu more than 60,000 yuan.
If this case does not have any problems in terms of legal provisions, it is a very typical problem of no-cause management. No matter what psychological considerations Chen has, when he agrees to do it for others While taking care of children, there will inevitably be no-cause management in the law. No-cause management is not premised on the agreement between the parties. It is just that in the management process, corresponding management obligations will appear. Once there are omissions in the management, there will be no cause. will bear certain civil liability for its adverse consequences. Therefore, in this case, due to Chen’s temporary negligence and failure to perform qualified management obligations, the child became disabled. Therefore, in accordance with the relevant provisions of no-cause management, it will inevitably require Bear certain legal responsibilities.
But from a social and moral perspective, this is a big problem. Legally, Chen has no obligation to take care of his children. It is just because of his enthusiasm and his original intention to help others. Help to take care of the children, and such a result is not what Chen wants to see. However, Chen enthusiastically helped others, but ended up having to bear a huge compensation of 60,000 yuan, which is completely incomprehensible to ordinary people. The result of such a trial will not only seriously harm people's enthusiasm for doing good things, but will also affect the social atmosphere of the entire society to a certain extent.
Therefore, the author believes that during the trial of such cases, since it is a civil trial, there is a certain degree of freedom in itself. Therefore, while the trial can be conducted with reference to legal provisions, full consideration should also be given to the To maintain the sense of social justice, we should look at such cases from the perspective of justice and try our best to protect the rights of people who are willing to help others. Only in this way can we better safeguard the justice of the law and bring about a good social atmosphere.
References:
[1] Yang Renshou. Legal Methodology. Beijing: China University of Political Science and Law Press. 1999.
[2] Sun Xiaoxia. Chinese Tradition Judges’ substantive thinking. Journal of Zhejiang University (Humanities and Social Sciences Edition). 2005(4).
[3] Liang Huixing. Methods of adjudication. Beijing: Law Press. 2003.