On The Moral Basis Of The Developments In The Law

Rule by law is the social rule and utilization of law characterized by "the dominance of law". It does not exclude the morals' influences on one's inner world and restraints on external behavior, and embodies moral values. In the society ruled by law, people's external behavior is judged by the law, which is apparently inferior to moral standards but in fact advantageous to the development of social civilization, and ultimately forges ahead toward the code of ethics. Then, what is the relationship between rule by law and rule of virtue? Can both be implemented without coming into conflict? Many scholars have had wide discussions about this subject, most of which were conducted from the static angle, while this thesis attempted to make analysis to the development system of the law ( legislation, judicature, and abidance by the law) by demonstrations, probing into the moral grounds behind the system from the dynamic angle.Two key elements are included in the research on the moral basis of legislation. The first one is the legitimacy of the legislative power deriving from the people's consent which is incarnated in the process of legislation as "democratic legislation". And the crux of the matter is how to fairly distribute the franchise to ensure "democratic legislation". The second one is the moral restrictions on the legislative procedure. Most regulations of "democratic legislation" do not necessarily determine that a law is good, therefore, it is essential that moral restrictions be placed on "democratic legislation". Since the law is general rule of mandatory force of state, morals cannot be totally legalized, hence there are moral restrictions on legislation.Judicature justice can reduce the maladies of legislation to the minimum. The moral basis of judicial justice is the rectification of justice basically aiming at rectifying injustice or injury after their occurrence, which is also the moral proof of the existence of judicature. But to what degree will the rectification be morally reasonable? This essay inquired into the standard of equity, humanity and utility, seeing them as moral standards when appraising the rationality of the rectification of justice. Judicial independence is a basic prerequisite and institutional guarantee of judicial justice. Its value lies in the freedom of trial and decision which is genuine only when dispensing the law strictly and meanwhile guaranteeing people's freedom.Social members' consciousness and self-discipline are indispensable to the modern order of rule by law. Abidance by the law stems from the dual nature of people's needs. The essence and value of the law must be deeply rooted in people's mind. External legal stipulations should become inner standard of value, code of conduct and common faith of social members. Legal justice will not be ultimately achieved if it cannot be internalized or transformed into the individual's inherent norms and goal of value.