On Moral Discourse In Decrees Of Alimony Disputes

Owing to the impact exerted by the tradition of “finial ruling” and social effects extremely pursued by the judicial, decrees of alimony disputes are hand in hand with filial piety from ancient times. Until now, there are still several decrees to be found that filial piety are usually used for reasoning, regarded as ratio decidendi, or taken as the goal of promoting filial piety in alimony disputes. Applying moral discourse in decrees of alimony disputes seems to be a common phenomenon. Marriage Law and Rights Protection Law of Elderly People, both of which lay legal basis for decrees on alimony disputes, have been relatively complete and mature. According to a case study, almost all alimony disputes are not hard cases in which the facts and rules are clear. As long as strictly subject to legal rules, decreeing disputes within claims grounded on rules can be regarded as a token of having performed the duty and responsibility of the justice. In decrees of alimony disputes, however, the fact that moral discourse is regarded as reasoning, ratio decidendi, or the goal of justice, to some extent, seems to enhance pursuance, but some threats, such as undermining judicial independence, confusing the duty and responsibility of justice, depriving the law of morality, may be behind the approach. As for non-hard cases in which the facts and rules they are subject to are clear, the judge needs not and doesn’t have to shoulder the mission of promoting a certain morality beyond adjudicating according to the law. As a passive exercise of public power, the judge are supposed to be more prudent in avoiding excessively active response to moral issues which will erode their neutral attitudes and positions, and further to avoid falling into a boost of moral despotism or suppression of thoughts in that they are excessively active to shoulder a certain moral mission. Consequently, attitudes in decrees of alimony disputes should be as follows: Handle non-hard cases within rules and disputing claims, performing the duty and responsibility of justice; Take rules seriously, performing the inner morality of the law; Strictly balancing principles when applying them with logical justification so as not to violate inner morality of the law; Pursue and achieve external morality of the law via respecting inner morality of that.