A Study Of Communitarian Legal And Moral Thought

What is the specific meaning of the law,and what is its relationship with morality?Does morality have the authority to legally examine the law? And can the law force people to engage in things that violate their will? For thousands of years,these problems have been regarded as extremely challenging traditional problems,which have been constantly discussed and studied by numerous scholars throughout the ages,but never produced a convincing answer that can be believed by everyone.From ancient Greece to the middle ages,law and morality are closely related and inseparable.Many scholars believe that morality can provide the basis for law and can be the basis for judging whether the law is just or not.But in modern times,especially since Kant,the principle of neutrality has gradually gained ground.According to the principle of neutrality,a free country cannot openly believe in a kind of good life view or impose this concept on its citizens,but must remain neutral in what is good life.On the legal level,this principle is embodied in that no comprehensive moral or religious concept can be the basis for judging the justice of the law.Furthermore,the law cannot force people to do things against their will,even if it is good for them and the country.In the middle of the 20 th century,the principle of neutrality occupied the leading position in the academic world.Scholars of the liberal school all wrote for it and regarded it as the standard.But by the1980 s,the strong rebound from the communitarianism,communitarianism,on the basis of criticizing the liberalism in virtue theory and skopos theory as the foundation,tries to fix the principle of neutrality,in ethics,they think that the law should not also can’t eliminate moral concept and moral evaluation factors,the state shall have the right and also have to pass legislation to force citizens to engage in beneficial to its,countries should be sure and lead a good life,the country needs to complete such a kind of moral legalization process.Since this century,domestic also began to study of the idea of communitarianism,but from the point of view of the domestic existing literature,most on the philosophical level,don’t have much in law,is a representative only Zhang Zhigan research of communitarian notions of heaven studies of communitarianism view on rights,Cheng Guansong yuan narrative of the modern rule of law civilization communitarianism "rhetoric,guang-tao zhu in the theory of communitarianism to liberalism jurisprudence of three challenges,Hua Yu the communitarianism minority rights protection under the impact of the changes--in the perspective of liberalism and communitarianism debate",etc.In addition,most of them mainly focus on the study and analysis of the concept of rights of communitarianism,and there are few specializations on the legal and ethical levels related to morality and obligation.Therefore,the author chooses legal ethics as the entry point to discuss the legal thoughts of communitarianism and tries to do his best.This paper is divided into eight parts: introduction,six chapters and conclusion.In the six chapters,this paper focuses on the main line of moral legalization,and elaborates the thoughts of communitarianism legal ethics,focusing on two major issues:whether morality can legally examine the law and whether the state can force citizens to live a kind of good life through the law.The introduction includes the origin of the thesis,related literature review,theoretical domain of legal ethics,research ideas and structure of the thesis,etc.The purpose of this part is to point out the writing direction of this paper and clarify the problem consciousness of this paper: it is the author’s thinking on the ethics of communitarianism law and the legalization of morality,as well as his concern on human nature.Chapter one introduces the legal ethics of communitarianism from the theoretical origin and the social background of the rise of communitarianism.The emergence of a school is closely related to the historical background and ideological origin of the school,and the construction of the ethics of communitarianism law is also the inevitable result of the joint action of these two factors.Considering the current situation,the law ethics of communitarianism has important academic value and practical significance.Chapter two is an analysis of the basis and core connotation of communitarianism legal ethics.On the basis,it is mainly divided into two aspects: one is the deconstruction of the concept of community;the other is the philosophical foundation of the law ethics of communalism: good takes precedence over right and advocates public good.These two points are the root of the differences between liberalism and communitarianism,all of which are based on different views of "community" and "rights".Communitarianism also constructs its own theory based on the criticism of liberal legal ethics.On this basis,the criticism of the principle of national neutrality derived from communitarianism is the core connotation of communitarianism legal ethics.It is precisely because of the opposition to the principle of national neutrality that communitarianism infers that the establishment and evaluation of law cannot be separated from morality,and that the state should guide the people to live a good life.Chapter three is a study of two core issues of communitarian legal ethics,that is,in a democratic country,whether the moral concept of democratic majority can be embodied in the law and whether the state has the right to force citizens to do things that are good for both the citizen and the country,which are also static and dynamic processes of moral legalization.Communitarianism takes "roe v.wade" and "powers v.hardwick" as its starting point.By studying abortion and homosexuality,it proves that it is impossible to be valueless in the legislative and judicial process and will inevitably introduce moral judgment.Communitarianism further explores the issues of military service system and basic education,and expounds that if the state fails to guide the public’s outlook on good life through laws,the society will encounter a serious crisis.The fourth chapter is the result and influence analysis of moral legalization.The inevitable result of moral legalization is the construction and reconstruction of political community,which is also the ultimate goal pursued by the communitarian "legal cause".As the largest political community,the formation of a country contains the basic elements such as community members’ basic consensus on morality,mutual interests among members,and a political institution that institutionalizes both.Members are closely linked in the political community.To establish an ideal political community,the function of the state needs to be redefined and the nature of the government needs to be reclassified.Therefore,communitarianism puts forward the construction of "positive state" and "responsive government" and promotes the good of the community through the positive role of the state and government.Chapter five is a reflection on the multiple perspectives of communistic legal ethics,including the response of liberalism to communistic legal ethics and the pros and cons of communistic legal ethics in Marx’s vision.In the face of criticism of communitarianism,both rawls and dewoking,representatives of the liberal school,responded positively.Rawls distinguished the moral concept from the political concept of justice in order to maintain the principle of national neutrality and refuted the two major problems of communitarian legal ethics by the concept of public reason and overlapping consensus.Compared with rawls,dvorkin is more gentle.He proposed his own opinion on the basis of combing and criticizing the four viewpoints of communistic legal ethics.He believed that the country remained neutral because of the principle of equality,rather than to completely exclude moral values from political values.There are many similarities between Marx’s legal ethics and communitarianism’s legal ethics,but the communitarianism does not realize the class nature of law,morality and country.Chapter six is the revelation of communitarianism legal ethics,which is to put the content of communitarianism legal ethics into the vision of our country.A comparison,from the theory and method of traditional Confucian ethics seeks both fit,the second is to clarify communitarianism law ethics enlightenment on the rule of law in our country,ethics by means of communitarianism,and we need to understand that the good operation of law is inseparable from the role of morality,completely out of the soil of moral law cannot be recognized by people,not only can also be difficult to get long term for the following.At the same time,we should also pay attention to the unity of rights and obligations and should not blindly pursue rights instead of obligations.The government should also break the bureaucratic atmosphere and serve the people actively and effectively.The conclusion is a summary of this paper.It is believed that from the reality,people are social animals after all,and will be affected by emotions.People cannot be completely divorced from moral value judgment in the process of legislation,justice and law abiding,and it is unrealistic to insist on absolute value neutrality.In the pursuit of good,it is indeed necessary for the state to guide its citizens,but in the process of guiding it,it should also pay attention to the boundaries of state power and prevent the act of injustice in your name.