道德的法律审视——基于哈贝马斯的论述而论

The Legal Survey of Morality——Based on the Analysis of Jurgen Habermas

当代思想家哈贝马斯借助其互为主体性的"交往理性"范式和商谈伦理学理论,以现代法律为主体(理性化和形式法)去审视道德这一主体:道德具有不可制度化、不确定性、不能稳定的可期待性以及不具操作性;而法律则不同,具有自治性、独立性(不可化约为道德)、可制度化、确定性、稳定的可期待性以及具有操作性.虽然"后现代性"视野中的道德不再是法律的基础,现代社会的法律不能化约为道德;但为了化解二者的紧张关系,他则从承载者交往理性的商谈原则出发,从程序主义的角度对法律的合法性进行了论证,实现了对传统论证方法的超越:法律与道德同源、互为主体、相互渗透、功能互补。哈贝马斯对于现代法律与道德关系的新推进,向我们昭示着——中国迈入现代社会的坦途只能走法治之路而非"德治"(人治)之路。

When it comes to the relationship between morality and law, the traditional view holds that the law is the foundation of morality and could be converted to morality. The growth and development of modern society, however, prompts the separation of law and morality; that is, the law is isolated from morality which no longer functions as the basis of law. The school of natural law and legal positivism fell into a trap of dimensional subjectivism or the belief of opposition of subject and object. Nevertheless, Jur- gen Habermas, one of the most famous contemporary thinkers, who drew supports from his normal form of communicative rationality of intersubjectivity and theory of discourse ethics, examined the system of morality through the subject of legal system consisting of rationalization and formal law. He concluded that morality, without the stable expectability and maneuverability, could not be institutionalized. While the law, which is quite different, possesses the characteristics of autonomy, independence of being avoided to be transformed into morality, institutionalization, certainty, stabilization of expectancy as well as the maneuverability. Although in the eyes of post-modernists, the morality no longer functions as the basis of law, and the law within the modern society could never be converted into morality. In order to resolve the tension between them, Jurgen Habermas proved the legality and validity of law from the aspect of procedu- ralism, realized surpassing the traditional method of argumentation through discussing concept carrying the communicative rationality, and claimed that both law and morality enjoy the same origin and the notion of intersubjectivity, interpenetration and functional complementation. With the new advance in relation- ship between law and morality in modern society, Jurgen Habermas has made clear to us that rather than rule of virtue, it is the approach of rule of law which can help China be on the right track towards the mod- ern society.