伦理豁免中的智慧——基于中华伦理法对伦理和法律关系两难的解决

Wisdom in Ethics Exemption:A Study Based on Solutions of Ethical and Legal Dilemma in Chinese Ethical Jurisprudence

为圆满解答、彻底解决伦理和法律关系两难问题,中华伦理法从制度上实行伦理豁免。特定义务主体若陷入该两难,其法律义务则视轻重缓急和主体行为能力,或者依法减轻甚至豁免,转由其他义务主体或公权力履行;或者依法推迟,以保证优先敦睦伦理,从而消除伦理危机,然后亲自履行。由此充分保证特定义务主体自由行使特殊优先权,全身心履行伦理义务,悉心敦睦伦理,并从根本上圆满履行法律义务,维护法律关系。于是,伦理和法律关系由两难而两全,进而兼顾公序良俗而多全,达至公道。伦理豁免所含的智慧朴而茂,通而深:本乎伦理,使法律植根于本真,圆满履行其重要使命;出于人性,保证法律有合法性、合理性,而成为良法;善待人情,即顺应人之常情,规制不当之情,保证法律真正被认同和遵守,真正有效力和生命力。这样的智慧以常识及其公理性力量,蕴涵旺盛生命力和永恒、普适性因素,纵贯中华伦理法,千年一脉;横通现代法治国家作证豁免权这一类制度,万里友声。

Ethics, the primary endogenous relationship as well as the eternal-universal relationship in Chinese tradition, has always been a unique ontological relationship. Originated endogenously, it is thereby distinguished from other social relationships, including legal relationship which derived from the primary relationship and act as the functional relationship. Usually, ethical and legal relationships coexist peacefully. Occasionally, they may collide and contradict with each other, leaving the subjects of duty and their relatives and friends in a dilemma. Such a dilemma may even affect or threaten public order, good customs or people＇s morals. To deal with the dilemma, Chinese Ethical Jurisprudence came to establish an exemption system. Depending on the emergency and importance of the matter and the person＇s capacity, a person who is caught between a rock and a hard place may have his legal obligations reduced, exempted, transferred toothers, or postponed. Such solutions were proposed in order to provide the person with ale or privilege. One may perform his/her ethical roles first, and then fulfill his/her obligations, thus resolving the ethical crisis. Furthermore, such solutions may help perform obligations, maintain legal relationship, and establish social order. Therefore, ethics and relationships become compatible, preserving social order, good customs and morals. evolving process described above contains great wisdom. e way egal egal egal The Ethics exemption originated from ethical relationship. It provides a concrete system to guarantee the iustice of law and to prevent ethical vacuum on legal grounds. Ethics exemption is based on humanity. It protects humanity, maintains legal relationship and guards against irrational behaviors. Ethics exemption respects humanity and all human possibilities, including one＇s instinct to love their loved ones. It avoids coercive and intrusive demands, and thus protects humanity and all its variations, and prevents dehumanizing and overly-legalizing behaviors. Ethics exemption empathizes with human feelings. Human feelings may be general and universal, or inappropriate. Ethics exemption empathizes with and conforms to universal human feelings, but regulates inappropriate ones. It prevents human nature from endangering ethical relationship, humanity, social order and individual rights.