德教、德政与道德法律化——论德治的三种解释

Moral education,benevolent ruling,and legal enforcement of morals: Three interpretations of the rule of morals

关于德治,有三种重要的解释,也即德教、德政与道德法律化。它们都有各自的问题。德治作为德教的问题在于:德治如何能成为与法治比肩的治国方略?在证成德治时,如何能够从关于道德功用的事实判断推出德治这一价值判断?如何证成道德建设的可行性与有效性?如何证成国家介入道德建设的正当性和必要性?德治作为德政的问题是:德政已是人类社会的常识,似乎没有必要借助于德治的概念来推广,而且它无法很好地解释人们提出德治理念时心中已有的德治与法治的背景关系。德治作为道德法律化面临的挑战是:它可能会危及人们自由选择自己道德生活的权利,毁损人生的意义与价值,扰乱人们的道德认知与评价,并使得法律必须满足的一些要件难以实现,影响法律规则的合理性。

When discussing the nature of the rule of morals, there are three interpretations that are especially important: the rule of morals as moral education, the rule of morals as benevolent ruling, and the rule of morals as the legal enforcement of morals. All these interpretations have their own particular problems. The problems for the rule of morals as moral education are as follows: where is the “rule” in the rule of morals? how can the rule of morals be put on a par with the rule of law? when justifying the rule of morals, how can we bridge the gap between the factual judgment about the functions of morality and the value judgment about the rule of morals? how to vindicate the feasibility and effectiveness of moral construction? how to prove the legitimacy and necessity of state s involvement in the task of moral construction? The problems related to the rule of morals as benevolent ruling can be explained from two aspects: it is clear that benevolent ruling has been already a widely accepted political idea, so it seems not to be necessary to promote it in the name of the rule of morals;this interpretation cannot properly explain the background assumptions relevant to the relationship between the rule of law and the rule of morals. As for the rule of morals as the legal enforcement of morals, its problems mainly lies in two aspects: it might affect people s ability and right to select their moral lives freely, damage their meaning of life, and obscure our moral cognizance and evaluation;it will be difficult for legal rules to satisfy their necessary conditions, and so affect the reasonableness of legal rules.