Study On The Morality Basis Of The Operation Of The Law

The operation of the law refers to the process of enactment, execution, application andcompliance, in other words it means legislation, law enforcement, judicature and law-abiding.Although law is the main mean to regulate the behavior in a modern country, but it cannotachieve good results alone. It can be operated effectively only by absorbing and reflectingcertain moral content, and the aid of the morality.This thesis analyzes the essence of the operation of the law on the basis of the moralityfrom four aspects that are legislation, law enforcement, judicature and law-abiding, andclarifies the fact that the morality can provide spiritual guidance, main insurance and internalsupport for the law, and the fact that the morality guides the enactment of the law, supportsthe implementation of the law and guarantees persistent law-abiding. The fundamental rolesof the morality on the operation of the law are as following: firstly, morality is of fundamentalvalues and provides spiritual guidance for legislation. An evaluation of the fairness of the lawby morality impels the enactment, amendment and repeal of the law, and maintains the rightethics direction of the law. Secondly, morality is an important support and subject guaranteeto implementation of the law which is inseparable from the concrete operation of people. Themorality and conduct of law–executor and judicature, which is the important guarantee to theimplementation of the law, directly influenceing the justice. Thirdly, morality is the internalsupport and the enduring power of consciously abiding by the law. Effective obligatoryoperation of the law depends on the individual’s moral identity, or the law can’t be universallyand lasting observed.Secondly, theoretical and practical support of the operation of the law based on themorality is fully proved from two aspects of theory and practice by means of theoreticalanalysis, history review and contemporary scan. The theory evidence is reflected in: Thenorm of morality is an important resource of the norm of the law, the standards of morality isthe scale to estimate whether the law is proper, morality fair is the pursuit of the law,morality autonomy is the essential complementary of the function of the law, and moralityjudgment is an important means of the law enforcement. The practice evidence reflects in: Many facts indicate that morality plays an important elementary role in the operation of thelaw, such as morality justice being above the law justice in the West, ideological and politicaleducation centralizing overall situation in the initial stage of China, and the government withboth morality and law in the present age of China.Thirdly, this thesis clearly pointed out that in nowadays with pluralistic sense of worth,morality deficiency has a negative impact on the operation of the law, manifested in: firstly,lack of morality of legislation leads to lack of fairness of contents of legislation. Democraticand open degree of legislative procedure is not enough, and phenomenon of legislationconducted by benefits still exists in some areas; secondly, lack of morality of law enforcementleads to unfairness and corruption; thirdly, lack of judicial ethics causes judicial unfairnessand corruption in the judiciary; fourthly, lack of morality of law-abiding causes many illegaland criminal phenomena such as the manufacture and sale of harmful food, violation ofworkers’ rights, improper competition and so on. Illegal acts caused by lack of moralitydemonstrate the close relation between the extrinsic breaking the law and inherent morality.Fourthly, the thesis probes into the reason of lack of morality in the execution of the law,analyses mainly from five aspects of pluralism of morality, altruism of morality, legitimacy ofmoral emotion, material bases of morality and social systematical guidance of morality. Interms of pluralism of morality, the pluralism morality dispels the dominant morality to certaindegree; In terms of altruism of morality, due to the lack of protection of happiness andsatisfaction in morality, the formation and solidifying has been hindered; In terms of themoral emotion, dislocation of sense of honor and disgrace and lack of sense of fair haveseriously influence on the legitimacy of moral emotion; In terms of moral needs, meeting thematerial need is the base of generation of morality, and moral construction cannot transcendreality on survival interests; In terms of the social system guidance of morality, thehighlighting of economic function of political system, the weakening of public service, andlack of effective supervision and necessary guarantee of judicial system will impede thegeneration of morality of law enforcement and judicature which takes the equity as the core.Finally, on the basis of analyzing the reason for the morality deficiency, theimplementation path to strengthen the construction of morality of operation of the law isproposed from several aspects below: Firstly, the moral accomplishment of the main bodywho are in charge of the operation of the law should be improved. The morality basis of operation of the law is the core values of the socialism. The moral reward and punishmentsystem should be established, and morality quality of citizens should be improved. Meanwhile,construction of government morality should be strengthened to play an exemplary role.Secondly, morality of legislation should be strengthened. Legislation in the field of financeand taxation and education should be accelerated and improved to accomplish the fairness ofredistribution, meanwhile improving democracy and openness of procedure of legislation.Thirdly, construction of morality of law enforcement should be strengthened. Transcendencegovernment will be established with the transformation of function of government, meanwhilesystem of appoint, dismiss and assess of cadre should be reformed and the open system ofauthority operation and estate of official should be practiced. Joint and several liabilitiesshould be established to guide the construction of law enforcement morality. Fourthly, theconstruction of morality of judicature should be strengthened. The independent system ofjudicature, open system of judicial trial, misjudged case investigation system and judicialoccupation guarantee system should be improved to accomplish the fairness of judicature.Fifthly, the construction of law-abiding morality should be strengthened. The law-abidingmorality of business operators should be cultivated by increasing the cost of breaking the law.The law-abiding morality of workers should be cultivated by raising the proportion of incomefrom labor. The law-abiding morality of disadvantaged group should be cultivated byimproving social security system and so on.To sum up, morality is the foundation of the operation of law. Enactment, execution,application and compliance of law can be truly advanced only by setting about the inherentmoral reason of illegal phenomenon and further strengthening of morality development,, andthe legal process can be practically promoted.