| Part I - Introduction: The issue and the essence of issue. During the process of emending the Marriage Law of PRC, a very vehement and broad debate take place on whether or not to impose more restrictions on citizens' freedom of divorce. The circles of law, sociology and ethnics were all involved in the debate. The essence of this debate is the conflict of legal values in legislation. Analyzing this debate from the viewpoint of jurisprudence may provide a new macroscopical point of view to applied law, and is beneficial to the application of jurisprudence.Part II - The theoretical basis of analysis: The resolving of the conflict of legal values. Chinese scholars paid great attentions to the concept, the system and the significance of legal values when the study of legal values became one of the focuses in the study of jurisprudence. In fact, the emphasis of the study of legal values should be the resolving of the conflict of legal values if we pursue the practical effect of the study of legal values. The resolving of the conflict of legal values has dual meanings: one is the resolving between different persons, the other is the resolving between different goals of legal values. What is employed in this essay is the latter. Only few Chinese scholars put forward their principles on the resolving of the conflict between different goals of legal values.Part III - Differentiation and analysis: Whether imposing more restrictions on the freedom of divorce. As one of the goals of legal values, the freedom of divorce refers to individuals' expectation that the law will ensure and protect their voluntariness on divorce. The freedom of divorce has become a goal of modern law in every country around the world. Order most frequently conflicts with liberty. The principle that "obeying the more fundamental legal value" can resolve the conflict between freedom of divorce and order. But we have to specify which is "the more fundamental legal value" before applying the principle.Some people think the freedom of divorce will infract children's right of growing up healthily. The conflict between the freedom of divorce and children's right of growing up healthily can also be regarded as the conflict between different goals of legal values. We cannot resolve this conflict by applying the method ofeconomic analyzing.Part IV - The discriminating of fictitious conflicts of legal values. The conflicts of legal values can be divided into actual conflicts and fictitious conflicts. Sociological study indicates that the essential cause of infracting the children's right of growing up healthily Is not divorce but the conflict between children's fathers and mothers. We can find out that the conflict between the freedom of divorce and social order is a fictitious conflict when we're reviewing the conflict. It is very beneficial to exclude the fictitious conflicts of legal values in practice and our study. It will "resolve" some difficult conflicts that can be hardly resolved by those traditional principles of resolving conflicts. Furthermore, it will strengthen the persuasion power of some more rational opinions in the choice between different goals of legal values.Part V - The limitedness of legal values. Human beings will seek the goals of legal values forever, so we can say legal values is limitless. On the other hand, the realization of legal values must be based on the operation of the limited functions of law, so we shall bear in mind that legal values are limited. Firstly, the content of legal values are limited. They are not able to include some goals such as beneficence and love. Secondly, the measures of the realization of legal values are limited in modem society.Part VI - Epilog. The purpose of this essay is to analyze this debate on the freedom of divorce in legislating marriage law from a viewpoint of jurisprudence, and present some new problems in the application of the doctrine on the resolving of the conflict of legal values. The author expects this essay will be useful to future studies of legal values... |
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