The Research On Moral Discourse In The Judgment

There are countless ties between laws and morals since the birth of laws. Similarly, the moral discourse is ubiquitous in judgments, which are regard as the application of laws. From ancient court verdict to modern judgment, moral discourse always plays a very important role in the evolution of Chinese judgments. In ancient Chinese judicial trial was morality not only the standard of conviction and sentencing, but also the main reason of judgment. Nowadays with the respect of legal rationality and logical reasoning, the proportion of moral discourse in judgments has been greatly reduced. However, moral discourse and moral balance still plays a very important role in judicial practice. As an important role in the evolution of judgment, moral discourse has numerous positive significance such as strengthening intelligibility and acceptability of judgment in the application of judgments. Therefore, we should attach more importance and pay more attention to the status and role of moral discourse in the judgment. Furthermore we should also conduct analysis and research from the theoretical level to provide support for the role of moral discourse in the judgment.Starting from the concept and characteristics of moral discourse, this paper clarifies explicitly the definition and features of moral discourse in the background of Chinese Socialist Legal System.Through the analysis of the universality of moral balance in judicial judgment, the effectiveness of overcoming of the limitation of logical inferences as well as the superiority of the application of moral discourse, this paper elaborates the legitimacy of the introduction of moral discourse into judgment. Through the analysis of the application of moral discourse in judgments in China and abroad, this paper clarifies the realistic foundation of introducing moral discourse into judgments, especially expounding the effective way to introduce moral discourse into judgments in China-Judiciary Epilogue. The application of moral discourse certainly has its own advantages and disadvantages. On one side, proper application of moral discourse can enhance the acceptability and rationality of judgments, strengthen the social effect of judgments as well as make up the disadvantages of positive laws, on the other side, the unreasonable application of moral discourse can also result in adverse influence in the independence of judicature and judicial justice, the expansion of judges’ discretionary power, which has a great influence on the authority and stability of laws. Consequently, in the application of moral discourse in judgments, we must obey the rules of respecting for the legality of judgments, confirming the scope and form of the application of moral discourse in judgments on the foundation of accumulating judicial experience and applying the moral discourse reasonably and pertinently to exert the positive function and avoid the negative impact.