The Criticism On Western Contemporary Legal Moralism

The limitation and scope of law enforcement ethics has been one of the main problems in the field of legal theory and practice. This problem also has outstanding performance in China’s legislation and judicial practice in recent years. Legal moralism, as a kind of legal theory and legislation tendency are causing the extensive concern of legal science again. To correctly understand the connotation of the legal moralism, we should analyze its rationality and defects. As the main representative figure of legal moralism, Devlin’s ideas should be researched at first. Devlin’s argumentation of legal moralism looks systematically and comprehensive, including most of the views which support the enforcement of morals. Devlin advocated his theory with ideas of social collapse theory, paternalism analogy, the moral function of criminal law and the moral environment doctrine, etc. These series of theories constituted Devlin’s idea systematically. In this paper, I will try to analyze the logic relation between those basic theories of the legal moralism, and criticize them one by one. According my analysis, we can see that Devlin’s theories was facing contradictory to prove themselves.However, it doesn’t mean they have completely lost influence though they had defectives. In modern society, in legislation and Jurisprudence, the intention of using the law to enforce one’s personal moral is still alarming. Although the intention was rarely seen again in the name of the legal moralism, there are many similarities between them. Oldies but Goldies, since we had found the problems of legal moralism, the same time we had got reasonable methods to critique the similar mistakes. China is facing the same problem in the field of legal practice, it should alert our attention and vigilance. In this paper, I will take two specific cases as examples, aiming to remind Chinese lawyers that we should be more than cautious to keep away from the danger that moral standards could become a basis to support our criminal law to intervene personal freedom.