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On Legal Autonomy In The Context Of "legislative Moralization"

Posted on:2023-05-21Degree:MasterType:Thesis
Country:ChinaCandidate:K Z LiangFull Text:PDF
GTID:2556307037471824Subject:Legal theory
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As Alasdair Macintyre has argued,modern society is experiencing a more serious moral crisis.In order to solve the symptoms of moral disorder,people demand that morality be enshrined in the law and give moral law binding force,such as the legalization of same-sex marriage in the field of marriage and family,the establishment of business ethics in the commercial field,and the passage of the anti-food waste law in the field of environmental protection.When more and more moral norms are transformed into legal norms,creating the "illusion" of moral norms entering the legal system and deciding on legislation in a strong posture,it induces concerns and doubts about the "moralization of legislation" and undermines legal autonomy.On the one hand,the openness of natural jurisprudence does not explain why modern legislation absorbs pluralistic(even opposing)moral values,moral consensus has collapsed,and absolute moral authority has ceased to exist.On the other hand,the closed nature of the law expounded by positivist jurisprudence cannot explain that the legislation absorbs moral norms and responds to social moral demands,showing a re-essence of the law.Luhmann’s sociological theory of law outlines the legal system in operation closed and cognitively open,solving the contradiction between closed and open needs,which is a way to interpret the path through which law chooses and transforms moral values.In essence,morality is relatively isolated from modern law,the legal system operates in a self-generated way that is different from the environment,self-contained,and moral law is no longer just a simple form of "input-output".The impact of morality on law cannot be denied,but it needs to be made clear that the legal system cannot directly identify morality,and morality cannot be directly channeled into the legal system.The legal system realizes the closedness of the legal system through the legal/illegal binary symbol identification mechanism.Morality does not have a legal/illegal binary,morality operates with a good/bad distinction,using the binary distinction of good/bad to express respect or contempt for people.The structure of legal/illegal functional codes is not set up for the good/bad distinction,and good/bad cannot directly and explicitly lead to legal/illegal binary values.Morality that hovers at the door of the legal system cannot push the door into it,and morality needs to be coupled with the structure of the political system and the legal system before it can be transformed into legal norms.When some of these moral values are expressed as political demands,the political system stimulates the legal system through structural coupling of this channel and mechanism,which in turn transforms the relevant political demands into legal norms.Nevertheless,the legal system is always selective about the legitimate "observation" of the political system and remains subject to its own conditions,procedures,and standards.Some of the political demands may be eliminated,and the undefined needs are condensed and combined into "problems" to await further processing by the legal system,harmonizing internal elements to generate ethical rules that respond to the needs of society.Because the transformed moralization rules have a certain degree of openness,in order to avoid falling into moral adjudication in the application of moralization rules,the judicial subsystem plays an important role in the correct application of moralization rules and the maintenance of legal autonomy.On the one hand,the modern judiciary is the center of the legal system and is no longer a vassal of legislation.The judge only needs to make a decision on a legal/illegal basis.Judges rule in accordance with the law,free from environmental interference.On the other hand,the judicial application of moralized rules follows certain logical ways and methods of thinking and does not fall into moral philosophy.In the judicial application of moralized rules,judges transform moralized rules and their applicable results into intrinsic components of the legal system.Through adjudication mediation and intervention in people’s daily lives,the judiciary stimulates people’s awareness of rights,and accumulates individual cases to extract new rules that adapt to the rapid development of society,promotes the advancement of legislation,and realizes the two-way interaction between the judiciary and legislation.
Keywords/Search Tags:Moralization of legislation, Legal autonomy, Systems Theory Jurisprudence
PDF Full Text Request
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