道德和法律:一种体用关系论

On Relation between Morality and Law about Essence and Its Use

法律并不是一个自足的整体,法律的基本精神和根本原则不可能靠法律自身来提供。一个社会只有依靠建立起统一的整体性的,并被民众认同的道德规范体系,才有可能获得法律的整体性和正当性。西方德法关系的处理范式经历了一个从自然法到实证主义的历史演变过程,法律的整体性问题已逐渐破裂。因此借鉴中国传统思想中处理道德和法律关系的礼法范式对我们今天的法治建设有着积极意义。

Legal system is not a self-sufficient whole. The law itself cant provide the basic legal spirit and fundamental legal principle. Only when the uniform and integral ethic has been founded and agreed by people in a society, the integrality and legitimacy of law can be acquired. The paradigm of relation between west morality and law experience an evolvement from natural law to legal positivism. However, the problem of laws as a whole is gradually difficult to solve. So it is important for our today＇s rule of law to use the Chinese traditional legal paradigm which solves the relation between morality and law for reference.