Research On The Moral Conditions Of Legal Effective

Although there are divergences of interpretation of and disputes over morality as the condition of law’s effectiveness,in legal practice reasoning,judges directly revise,restrict,expand and overturn the established judgments with moral principles,which makes the law sometimes idle or be ignored.The proposition that morality becomes the condition of law has formed different academic schools in western law theory,the most typical of which are legal positivism,natural law school and Dworkin’s proposition.Legal positivism holds that law is mainly the product created by legislators,legislative activity is a kind of factual act,the effectiveness of law depends on social facts,and has nothing to do with morality,also known as the "proposition of social facts";there is no necessary link between law and morality in concept,that is,it is theoretically called the "separation thesis " of law and morality.Legal positivism cuts off the conceptual connection between law and morality through the "separation thesis " and provides that the effectiveness of law does not need to meet the moral conditions and meet the moral standards through the "social fact proposition".However,the theoretical defects of legal positivism are as follows: firstly,appealing the effectiveness of law to social facts cannot reasonably explain why the law is effective,cannot properly explain what the underlying reasons for people to abide by and obey the legal obligations,why the law is worthy of respect and belief,and the legitimacy of the law is subject to query.The second is that if morality is completely stripped from the legal concept,the creation of law becomes the embodiment of the legislator’s will to power without any normative restraints,and the legislator’s will can be good or evil,resulting in the practical dilemma of "evil law",which is against people’s rational intuition and does not conform to the good nature of law.But legal positivism has safeguarded the independence and authority of law.Some representatives of the school of natural law share the basic common view that the effectiveness of law should meet the moral conditions and meet the moral standards.Otherwise,the law is "illegal" or "defective".However,the common problem they are facing is that they cannot successfully refute the "separation thesis " of Legal positivism on law and morality.Legal positivism advocates that the ineffectiveness of law does not affect the validity of law.The existence of law is one thing,and the quality of law is another thing.People can refuse to abide by and obey evil laws,but flawed laws or evil laws are still laws,thus refuting the natural law school’s claim that morality is a necessary condition for the effectiveness of law.In addition,another problem of the school of natural law is that the effectiveness of law needs to meet the moral conditions,replacing legal standards with moral standards in legal practice will destroy the established order of the rule of law and damage the authority and independence of the law.However,the school of natural law resorts to moral conditions for the effectiveness of law,to a certain extent,avoiding the formation of unjust and evil laws,which conforms to the requirements of the good nature of law.Dworkin tried to open a third way.In answering the influence and function of morality on the effectiveness of law,he changed the way of asking questions and examined what is the truth condition of a legal proposition in the process of legal practice reasoning.Dworkin advocates that the truth condition of a legal proposition must pass the double test of "conformity" and "moral justification",to be the basis of legal judgment and form law.Dworkin believes that law is derived from a set of coherent political and moral principles and provides the best moral evidence for current legal practice.In this sense,law is a part of morality,a branch and detail.Morality and law are necessarily linked.However,the biggest theoretical obstacle to Dworkin’s argument is that there are problems of moral objectivity and incommensurability in the process of legal interpretation,which are questioned by moral skepticism.Therefore,Dworkin developed and constructed his "theory of value unity" in his later period.On the one hand,he dealt with and solved the difficult problems of moral objectivity and incommensurability,on the other hand,he demonstrated the formation process of the unity of value,and formed a network of values that integrated political,moral,ethical and legal values,all legal,political and moral questions.Questions can be found in the net of value.Politics,morality,ethics and law are unified through the simultaneous equation of the two principles of human dignity,and law and morality form one and two sides.But in the modern society of value pluralism and moral relativism," theory of value unity " may be a "utopia" or a "myth".The revelation from the western jurisprudence school’s reply to the "moral condition for the effectiveness of law" is that when dealing with the relationship between law and morality,we must be alert to two kinds of risks.One is to refuse to replace the inherent goal of law with simple public morality and justice,to destroy the order of the rule of law,and to damage the authority and independence of law.The second is to refuse to give up the pursuit of the intrinsic moral goal of law,neglect the cultivation of the intrinsic moral of law,so that the law cannot resist all kinds of unjust and immoral acts done in the name of law.How to eliminate the two kinds of risks in the relationship between law and morality,the author advocates and holds that the internal morality of law can be separated from the external morality of law by means of Fuller’s moral concept of law,and the internal morality of law can be independent of the external morality of law,and the standard of legal legitimacy review can be limited to the internal morality of law.At the same time,by referencing to Kant’s "universal testing principle",the universal principle formed by the universal testing will be taken as the judgment standard of law’s inherent morality.In this way,the legitimacy and goodness of the law are guaranteed,the independence and authority of the law are realized,and two risks mentioned above are eliminated.