我国现阶段法律与道德的冲突问题研究

发布时间：2019-03-01 18:19

【摘要】：法律与道德作为调整人们社会关系的规范和价值系统,属于上层建筑的组成部分,二者均根植于经济基础,同时对于规范市场经济条件下人们的行为在多重层次上具有不可或缺的作用。社会经济的发展在给人们带来富裕物质生活的同时,也形成了人们生活方式、行为模式及价值的多元化。由于法律与道德生成模式的差异,二者虽然均决定于社会经济基础,但法律创制的秩序性和理性特质使其与社会生活变化之间有一定距离,具有滞后性,而道德的自发形成特质则使其与社会生活变化联系更为密切,这就使法律与道德之间存在某种天然的不协调性。事实上我国现阶段法律与道德相冲突的现象屡见不鲜,法律选择和评价与道德选择和评价“二律背反”的状况时有发生。这就需要研究构建法律与道德的冲突解决机制,形成一套与我国社会经济发展相适应的规范体系。法律与道德的冲突主要表现在两个方面,即法与“理”的冲突和法与“情”的冲突,如见死不救、大义灭亲、用私刑惩治小偷、老公为捉奸而非法侵入他人住宅,包庇窝藏协助亲人潜逃、多角恋爱、最近几年一直热议的安乐死问题等。关于法与情理问题的争论,实际上是两种不同社会规范内在矛盾和冲突的反映,这从根本上说是法律与道德的价值取向差异所致,当然更深层次来讲则是因为人们在社会生活中存在着各种各样的利益冲突。本研究透过这些纷繁复杂的法律与道德相冲突的现象和行为,从学理和社会角度对导致冲突的原因进行全面分析,二者冲突主要是法律与道德所追求的价值标准差异、法律的权利本位与道德的义务本位的对立、法律的确定性程度与道德的多元化不同、法律的程序正义与道德的实体正义的冲突、法律与道德发展的不同步、移植的法律与本国的道德国情不协调、治国理念的不同、法律自身的局限性等方面差异的影响。法律与道德虽然存在着诸多冲突,但也有着相互补充强化的促进作用,这就要求我们必须正确处理二者的关系,寻求解决法律与道德冲突问题的对策。本文认为解决法律与道德的冲突,首先要进行原则建构,坚持法律的基本道德标准原则、法律与道德的差异性原则、利益起点和分层原则、权利与义务相统一和有限性原则、道德分层原则;其次要实现法律与道德的整合,促进二者的转化机制,完善二者的互补机制;具体路径则需要从法律角度的立法、司法、执法、守法层面和道德角度的现代范式、公平正义制度层面来实施。这样才能使法律与道德做到相互渗透、相互补充、相互结合、相辅相成,共同担当起维护社会和谐发展的任务。
[Abstract]:As the norm and value system to adjust people's social relations, law and morality belong to the components of superstructure, both of which are rooted in the economic base. At the same time, it plays an indispensable role in regulating people's behavior in multiple levels under the condition of market economy. The development of social economy not only brings rich material life to people, but also forms the diversification of people's life style, behavior pattern and value. Because of the difference between law and moral generation mode, although both of them are determined by the social economic basis, the order and rationality of legal creation make it have a certain distance from the changes of social life, and they are lagging behind. The spontaneous formation of morality makes it more closely related to the change of social life, which makes the law and morality have some natural disharmony. In fact, the conflict between law and morality is not uncommon at present in our country, and the situation of law choice and evaluation and moral choice and evaluation of "antinomy" happens from time to time. Therefore, it is necessary to study and construct the conflict resolution mechanism between law and morality, and to form a set of normative system which adapts to the development of social economy in our country. The conflict between law and morality is mainly manifested in two aspects, that is, the conflict between law and "reason" and the conflict between law and "feeling", such as the death of death, the killing of relatives, the punishment of thieves with lynching, and the illegal intrusion of another person's house by her husband for the purpose of catching adultery. Shelter to help relatives absconded, multi-angle love, in recent years has been a hot discussion of euthanasia, and so on. The debate on the issue of law and reason is actually a reflection of the internal contradictions and conflicts between two different social norms, which is fundamentally the result of the difference in value orientation between law and morality. More deeply, of course, people have various conflicts of interest in social life. Through these complicated phenomena and behaviors of conflict between law and morality, this study makes a comprehensive analysis of the causes of the conflict from the perspective of theory and society. The conflict between the two is mainly the difference of the value standards pursued by law and morality. The conflict between legal procedural justice and moral substantive justice, the non-synchronous development of law and morality, the opposition between legal rights standard and moral obligation standard, the degree of certainty of law and the diversity of morality, the conflict between procedural justice of law and substantive justice of morality, and the conflict between legal procedural justice and moral substantive justice. The transplanted law is not in harmony with the national moral conditions, the different ideas of governing the country, the limitation of the law itself and so on. Although there are many conflicts between law and morality, they also play an important role in promoting each other. This requires us to deal with the relationship between the two correctly and to find the countermeasures to solve the conflict between law and morality. This article thinks that to solve the conflict between law and morality, we should construct the principle of principle first, adhere to the principle of basic moral standard of law, the principle of difference between law and morality, the principle of starting point and stratification of interest, the principle of unity and limitation of rights and obligations, The principle of moral stratification; Secondly, it is necessary to realize the integration of law and morality, to promote the transformation mechanism of the two, and to perfect the complementary mechanism between them. The concrete path needs to be carried out from the aspect of legislation, judicature, law enforcement, law abiding and moral angle, fairness and justice system. Only in this way can the law and morality permeate each other, complement each other, and shoulder the task of maintaining the harmonious development of society together.
【学位授予单位】：西安工程大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D90-052

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