Criticism On Legal Moralism During The Process Of National Governance

Legal moralism is a conception from the western world,which has been incorporated in the research and works of our legal field in a name called “morality-characterized law” or “law-characterized morality”.No matter how it is named,its nature has never been changed.Legal moralism is the theory of jurisprudence and the philosophy of law which holds that laws may be used to prohibit or require behavior based on society's collective judgment of whet her it is moral.Based on the actual situation of our country,this essay describes some phenomena happening during the operation of our national governance,which showing the tendency of legal moralism,with several field involved.For example,“go home more often” has been written into law,which belongs to the civil field,and the hot discussion of “spouse's rights” in the marriage and family field.Meanwhile,the discussion of creating a new crime to punish those who don't help people in danger.After the description of typical phenomena,it goes further to analyze the reasons,with two main reasons stand out.One is the terror caused by the misunderstanding of morality decay,another is the belief that law can be used to construct and shape morality.Analyzing the reasons help us find out that it cannot make the tendency of legal moralism in our national governance justifiable,neither can it live up to the supporters' expectation,while its harm is tremendous,including infringing individual's freedom,impairing the power of law,as well as derogating from the function of morality,thus lead to totalitarianism.Finally,some advice on national governance is put forward.Combining the strength of “rule of law” and “rule of morality”,defending the line between law and morality,instead of legal moralism.Admitting the imperfect of law and society,having a good understanding of human nature,and basing the rules and regulations on human nature.After all,positive motivation is far more useful than negative punishment.Admitting the imperfect of law and society and defending the value of freedom while pursing order.