Genealogy of Morality and Law

In order to clarify the relationship between morality and law, it is necessary to define both concepts precisely. Cultural realities refer to concepts which are more specifically defined if we focus towards the genealogy of those realities, that is to say, their motivation, function and aim. Should we start from legal anthropology, comparative law and history of law, law arises as a social technique which coactively imposes ways of solving conflicts, protecting fundamental values for a society's co-existence. Values subject to being protected are proposed by morality, the latter making subordination of law to morality inevitable. This explains that a great number of modern constitutions include a reference to fundamental moral values, that is to say, they have explicitly positivised moral contents. Legal reasoning, at all levels and expressions, needs to appeal to the aforementioned values. Constitutional reasoning, international law, legislative activity and judicial practice are studied to verify the latter. This subordination of law to morality sets out a serious problem: moralities are cultural realities which are only valid for a specific society. In order for law not to fall in a not very rational legal relativism, law should not be subordinated to morality, but to ethics, the latter understood as cross-cultural morality. The Universal Declaration of Human Rights was a step forward in this sense.     

The politics of disgust and shame

This is a critical study of Martha Nussbaum’s Hiding from Humanity. Central to Nussbaum’s book are arguments against society’s or the state’s using disgust and shame to forward the aims of the criminal law. Patrick Devlin’s appeal to the common man’s disgust to determine what acts of customary morality should be made criminal is an example of how society might use disgust to forward the aims of the criminal law. The use of so-called shaming penalties as alternative sanctions to imprisonment is an example of how society might use shame for this purpose. I argue that despite Nussbaum’s own view to the contrary, her arguments against such uses of disgust and shame are best understood as criticisms of programs of conservative political philosophy like Devlin’s and not of the emotions themselves.     

德法次序:一种现代政治伦理学叙事

道德和法律的关系,是体现现代性本质的一个核心问题。“德法次序”概念,可以将日常德治和法治关系的探讨,纳入到具有普遍性的政治哲学框架中来,实现一种现代政治哲学叙事。     

What Is Legal Philosophy?

This article delineates some of the main issues that are debated by philosophers of law. It explores the connections between legal philosophy and other areas of philosophy, while also seeking to specify the distinctiveness of many of the concerns that have preoccupied philosophers of law. It illustrates its abstract points with examples focused on the separability of law and morality, the nature of the rule of law, the nature of rights, justifications for the imposition of punishment, and the identification of basic legal entitlements.     

Common Law Approaches to the Relationship Between Law and Morality

How are general relations of law and morality typically conceived in an environment of Anglo-saxon common law? This paper considers some classical common law methods and traditions as these have confronted and been overlaid with modern ideas of legal positivism. While classical common law treated a community and its morality as the cultural foundation of law, legal positivism's analytical separation of law and morals, allied with liberal approaches to legal regulation, have made the relationship of legal and moral principles more complex and contested. Using ideas from Durkheim's and Weber's sociology, I argue that the traditional common law emphasis on an inductive, empirical treatment of moral practices has continuing merit, but in contemporary conditions the vague idea of community embedded in classical common law thought must be replaced with a much more precise conceptualisation of coexisting communities, whose moral bonds are diverse and require a corresponding diversity of forms of legal recognition or protection.     

公德建设要超越伦理本位传统

公德是公共行为的道德规范.公德建设能够推动法治建设.在中国,由于长期伦理本位传统的影响,公德建设滞后,影响了中国道德建设,也遏制了中国法治建设的发展.推动中国公德建设必须超越伦理本位传统,将公德建设纳入法治轨道.     

儒学的一种缺弱:私德与公德

In a society dominated by Confucian ethics, a spirit of Confucian public morality can be seen in the Confucian debate over publicness and privateness, but it is usually activated in circumstances of large ethical crisis. Confucian theory mainly uses ethical relationships to create self and social identities, causing problems of identification in the public life and hindering the expression of moral feelings and actions, thus revealing a weakness in public morality. This is a space that Confucianism has not yet been able to cover, and also where it has room for growth. Translated by Huang Deyuan from Wen Shi Zhe 文史哲 (Journal of Literature, History and Philosophy), 2006, (1): 30–36     

On Luo Congyan’s Ethics

Luo Congyan put forward the idea that benevolence is the substance while righteousness is its function, which placed the intrinsic value of human beings on a more fundamental position and affirmed the unity of benevolent principle and universal norms from the perspective of the relationship between substance and function. The unity of benevolence and righteousness involves the connection between value and norms, and the latter relate to the relationship between morality and law in the broader sense. On the basis of the idea of using both benevolence and righteousness, Luo Congyan examined the relationship between morality and law. Corresponding to the emphasis on the role of both law and political power, Luo Congyan concerned himself with how to establish rational interpersonal relationships in various ways. Furthermore, Luo Congyan emphasized the significance of behavior in everyday life, while he affirmed that the universal principle should be followed. In this way, he developed the earlier Confucian thought. Translated from Studies in Ethics by Xiao Mo     

Ethics and patentability in biotechnology

The systems of patent rights in force in Europe today, both at the level of national law and on the regional level, contain general clauses prohibiting the patenting of inventions whose publication and exploitation would be contrary to “ordre public” or morality. Recent years have brought frequent discussion about limiting the possibility of patent protection for biotechnological inventions for ethical reasons. This is undoubtedly a result of the dynamic development in this field in the last several years. Human genome sequencing, the first successful cloning of mammals, and the progress in human stem cell research present humanity with many new questions of an ethical nature. Directive 98/44 of the European Parliament and of the Council of July 6, 1998, on the Legal Protection of Biotechnological Inventions created a new basis for patent protection in this field of technology. Based on the European experience to now, however, it must be said that patent law is not the right place to legislate the consequences of the morality of an invention. An earlier version of this paper was presented at an international conference, “The Ethics of Intellectual Property Rights and Patents,” held in Warsaw, Poland on 23–24 April, 2004.     

Scientia Iuris - An Unsolved Philosophical Problem

Legal dogmatics in Continental European law (scientia iuris, Rechtswissenschaft) consists of professional legal writings whose task is to systematize and interpret valid law. Legal dogmatics pursues knowledge of the existing law, yet in many cases it leads to a change of the law. Among general theories of legal dogmatics, one may mention the theories of negligence, intent, adequate causation and ownership. The theories produce principles and they also produce defeasible rules. By means of production of general and defeasible theories, legal dogmatics aims at obtaining a system of law that is both internally coherent and harmonized with its background in morality and (political) philosophy. Legal dogmatics is necessary in the context of constitutional constraints on the majority rule. Only if the courts act on the basis of Reason they can be a legitimate counterpart of the majority rule. And Reason cannot be exhausted by particular decision making. It also needs a more abstract deliberation, given by expert jurists. However, legal dogmatics has been a target of several kinds of criticism: empirical, morally-political, epistemological, logical, and ontological. The position taken in this article is to answer such criticism by mutually adjusting philosophy and the practices of the law.     

Citizens' Sense of Justice and the Legal System

When an actor commits a wrong action, citizens have perceptions of the kind of responsibility the actor incurs, the degree to which the act was mitigated or justified, and the appropriate punishment for the actor. The legislatively mandated law of criminal courts, statutes, and criminal codes deals with the same issues. Experimental evidence shows that there are important discrepancies between the principles that people and legal codes use to assign responsibility. That is, the moral retributive-justice principles that people use are sometimes in conflict with the directions in which modern code drafters are taking criminal law. These discrepancies may cause citizens to feel alienated from authority, and to reduce their voluntary compliance with legal codes.     

试论《淮南子》对"法"、"德"、"风俗"的糅合

在《淮南子》糅合“法”、“德”、“俗”的治道思想中,蕴涵了“反秦／袭秦”（对“法”的改良）、“倡道德／斥礼乐”（对“德”的期待）并存的内在特质,同时,还对风俗在民间社会中的教化、规范功能有着充分的认识。     

Introduction: Egoism,Altruism and Impartiality

The distinction between egoistic and altruistic motivation is firmly embedded in contemporary moral discourse, but harks back too to early modern attempts to found morality on an egoistic basis. Rejecting that latter premise means accepting that others’ interests have intrinsic value, but it remains far from clear what altruism demands of us and what its relationship is with the rest of morality. While informing our duties, altruism seems also to urge us to transcend them and embrace the other-regarding values and virtues constitutive of a good life. This rather wide conception of morality may strike us today as too demanding. At the same time, however, currently popular impartialist accounts of morality can disrupt much everyday altruism in their insistence that each person’s interests are weighed precisely equally. Having sketched this problematic of altruism, the second half of this Introduction outlines the arguments of the four papers and review essay in this collection, each of which, in a different way, negotiates the difficult relationships between egoism, altruism, morality and impartiality. This revised version was published online in July 2006 with corrections to the Cover Date.     

评中国思想家对道德与法律之关系的探索

儒家礼法合一论的真义是对“善法”的追求 ,对“恶法”的否定。因为善法体现了儒家的道德精神 ,反映了一种人道主义的价值取向 ,而恶法则是反人道的。墨家强调“法不仁不可以为法” ,其真实的意思是不道德的法律不是真正的法律 ,与儒家的礼法合一论有相似之处。法家主张“法虽不善犹善于无法” ,从而否定了法律的道德基础和价值根据。今天 ,我们在立法中贯彻道德的法律化取向需要谨慎从事 :一是注意把那些体现时代精神、合乎社会潮流的道德予以法律化 ,不能把落伍于时代的道德法律化 ;二是切忌把过高的道德义务转化为法律义务。必须认识到 ,应该法律化的道德只是“底线道德” ,而高层次的道德是不宜法律化的 ,否则就是强人所难。     

试析德国纳粹人体实验的道德逻辑

德国纳粹人体实验与德国现代伦理思想中的超人道德和种族主义思想密切相关。超人道德是纳粹人体实验的“意志-伦理”基础,种族主义则是纳粹人体实验的“科学—伦理”依据。     

The evolution of the primates: Anglicanism,primacy and conciliarity

Contemporary debate about the relationship between civil and religious law, highlighted by the Archbishop of Canterbury's 2008 lecture on ‘Civil and Religious Law in England’, prompts a reassessment of the place of ius divinum in the understanding of the nature of law. This article questions the assumption of modernity that there is no place for divine law, and briefly surveys the different role played by divine law in Judaism, Islam and Christianity. It examines the contrasting Christian perspectives of Aquinas and Duns Scotus, which leads to a critique of the relationship between personal welfare and the common good. Since, in the context of post-modernism, questions related to divine law are once again being addressed, the article criticises aspects of a fundamentalist approach to it in both Islam and Christianity. It argues that, from a Christian perspective, the personal truth of Jesus Christ embodies the place where the divine freedom comes into relation with human freedom. It concludes that in reflecting on a common praxis for humanity, it is this embodied relationship which provides the basic perspective for practitioners of canon law to contribute in a significant way to the debate now gathering momentum.     

Logic or rhetoric in law?

One of the most crucial questions in the philosophy of law deals with the very nature of legal reasoning. Does this reasoning belong to logic or to rhetoric? This debate, increasingly centered on rhetoric, is not merely a question of language use; it covers and indicates a more basic choice between formal legalism — focusing on rational deduction from the law — and pragmatic judiciarism — focusing on reasonable debate in the court. Today, it is necessary to circumscribe the respective fields of logic and rhetoric in the language of law, while showing how they are sometimes complementary in the resolution of legal problems. But, even when we have acknowledged the need for a rhetoric accompanied by logic, we have to define that rhetoric cautiously. I confront a narrow rhetoric, often called argumentation, with a wider one of interrogative nature. There are two conceptions of rationality at stake. Their comparison enables us to raise the question of the foundation of law, as a locus to use arguments, as well as to solve social problems.     

English,Christian or Muslim Law: Deconstructing Some Myths

Archbishop Rowan Williams's 2008 lecture, “Civil and Religious Law in England: A Religious Perspective,” has become an historic reference point for discussions about relationships between Islam, religious law and English law. One of the Archbishop's heart-felt pleas was for “deconstruction” of myths about both Islam and the Enlightenment. Continued stereotypes perpetuated by the “Trojan Horse” debate over Birmingham schools and the aftermath of the Charlie Hebdo event suggest the plea went unheard. This article aims to address factors that prevent objective assessment of the relationship between English law, religious laws, Islam and other faiths. It is hoped that this will help the deconstruction of myths by examining what the law says, the claims religious communities make and whether further change is needed. The relationship of religious laws, norms and courts to secular legal systems is a pertinent topic for Christian–Muslim dialogue to which it is hoped that this article might contribute. Amongst issues considered are the scope for more formal recognition or monitoring of religious laws that have an impact on the lives of some UK citizens, and arguments for recognition on the basis that a democracy should reflect all parties to its citizenship and protection of the most vulnerable. As calls for further recognition of religious laws arise, the deconstruction of myths can only smooth the way for their objective assessment.     

Legal realisms: on law and politics

The focus of this work is the issue of whether, and to what extent, the nature of the law is affected by politics, has been taken up by the American and Scandinavian legal realists. By the very fact of their being products of␣the socio-political conditions of the most recent century, the American and Scandinavian legal realisms are the movements that have most explicitly and systematically brought to the surface one particular characteristic phenomenon of contemporary Western legal systems: the existence of two basic forces simultaneously attracting and repelling, affecting the law in its relations with the political world.I would like to deeply thank Brian Bix, Laura Carlson, Roger Cotterrell and Jori Munukka for their many helpful comments on earlier drafts of this article. Any errors remaining are my own.