论我国社会转型期法律与道德的冲突及协调

发布时间：2018-03-12 21:37

本文选题：法律　切入点：道德　出处：《江南大学》2012年硕士论文　论文类型：学位论文

【摘要】：在当前我国社会的转型时期，市场经济的飞速发展在带给人们物质生活富裕的同时，也急需一套与市场经济相适应的上层建筑的规范和价值系统。法律与道德作为人类社会规范的两个不同维度,是社会控制体系中的两个子系统，对矫正市场经济条件下人们的行为具有重要作用。社会主义市场经济的发展所带来的是人们价值的多元化，这使传统的法律与道德已经无法与社会的发展同步，，法律与道德的冲突的现象开始屡见不鲜。于是在社会上出现了两种现象：一是某种行为合乎法律的要求，但其丧失了道德的评判；另外一种是某种行为是高尚道德的，但却因不合法而受到法律的惩罚。前者如“见死不救”、“挟尸索价”，后者如“大义灭亲”、用私刑惩治小偷等。关于“合法”与“合理”问题的争论，实际上反映了两种不同社会规范的内在矛盾和冲突。同时，也是法律与道德价值取向的不同所致。透过这些纷繁复杂的法律与道德冲突的现象和行为，从理论上对这些冲突进行各个层面的分析得知，导致二者冲突的原因主要有:道德与法律两种行为评价标准不一致；道德与法律所追求的价值目标存在差异；传统道德的等级观念与现代法治要求的平等观念不同；道德的义务本位与法律的权利本位的追求不同；传统道德演进与现代法律发展的不同步等等。既然法律与道德的冲突既有相互强化的的一致性，也存在种种冲突，就必须寻求在社会转型期解决问题的有效办法，正确处理二者相互关系。本文认为化解法律和道德的冲突，协调二者关系的战略选择是：一是坚持法律至上的原则；二是法律及时的吸纳社会主流道德，更新自身的道德内涵；三是道德对法律进行辅助，肯定道德对法律的补充和强化作用。具体的办法包括：法律道德化，使某些法律回归道德，使法律如道德一样成为一种信仰；道德法律化，从意识层面和制度层面，使道德的精神逐渐渗透和被纳入现代法律文化中，体现法律的道德性；整合法律与道德资源，共同促进转型社会的发展，实现社会效果和司法效果。这样才能使法律与道德做到相互渗透、相互补充、相互促进、相互配合、相辅相成，共同担当起维护社会和谐发展的任务。
[Abstract]:In the current period of social transformation in China, the rapid development of the market economy has brought people material prosperity at the same time. There is also an urgent need for a set of superstructure norms and value systems adapted to the market economy. As two different dimensions of human social norms, law and morality are two subsystems of the social control system. It plays an important role in correcting people's behavior under the condition of market economy. The development of socialist market economy has brought about the diversification of people's values, which makes the traditional law and morality unable to keep pace with the development of society. The conflict between law and morality began to be common, and two phenomena appeared in society: one was that a certain act met the requirements of the law, but it lost its moral judgment; the other was that a certain act was noble and moral. But they are punished by the law because of their illegality. The former, such as "not saving the dead" and "asking for the price of the body," and the latter, such as "extermination of relatives," using lynchings to punish thieves, and so on, have been punished by the law. The controversy over the issues of "legality" and "reasonableness," In fact, it reflects the internal contradictions and conflicts between the two kinds of social norms, and at the same time, it is also the result of the different orientation of law and moral value. Through these complicated phenomena and behaviors of legal and moral conflicts, it is found from the theoretical analysis of these conflicts that the main causes of the conflicts are: the inconsistency between moral and legal behavior evaluation standards; There are differences in the value goals pursued by morality and law, the difference between the traditional moral hierarchy concept and the equality concept required by the modern rule of law, the difference between the moral obligation standard and the legal right standard, and the difference between the traditional moral hierarchy concept and the modern rule of law. The evolution of traditional morality and the development of modern law are out of step and so on. Since conflicts between law and morality are both mutually reinforcing and conflicting, it is necessary to seek effective solutions to problems in the transition period of society, This paper holds that the strategic choice of resolving the conflict between law and morality and coordinating the relationship between them is: first, to adhere to the principle of law first, second, to absorb the mainstream morality of society in time, and to renew the moral connotation of the law itself; Third, morality complements the law and affirms the complement and reinforcement of morality to the law. The specific methods include: legal moralization, making some laws return to morality, making law become a kind of belief like morality; moral legalization, From the level of consciousness and system, the spirit of morality is gradually infiltrated and brought into the modern legal culture, which embodies the moral character of law, integrates the resources of law and morality, and promotes the development of the transitional society. Only in this way can law and morality permeate, complement, promote and complement each other, complement each other, complement each other, and jointly undertake the task of safeguarding the harmonious development of society.
【学位授予单位】：江南大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D90-053

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