法与德的冲突及其法理思考

The Conflict Between Law and Morality and Its Jurisprudential Thinking

作为社会调整的基本规范,法与德冲突与互补同在,矛盾与互动并行。透视该种态势存在的根据,把握两种规范的社会定位,缓解乃至部分消除法与德的冲突,建立两者之间的协调互动关系,正是本文主旨所在。实践中的执法、司法的道德化倾向不仅混淆了法与德的界限,而且背离了法治社会的本质要求。

As the basic norm to regulate our society, law and morality conflicts and supplements each other. In practice, moral inclination in regulatory and judicatory process confuses the distinction between law and morality, furthermore, it deviates from the essential requirement of rule of law. So the paper tries to survey on the foundation of this situation, to grasp the social position of law and morality, to alleviate or partly eliminate the conflict between law and morality, which in the end leads to the harmonization and interaction of law and morality.