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What Should We Rely upon: Law or Morality?
The relation between law and morality is warmly discussed in these years.
The direct cause may be the great social changes we underwent in recent twenty years. The reform of our country initialed in 1979 has brought about great progress in many aspects. The economical achievement is especially praised by western economists as a surprise. Chinese successfully proved their intelligence once again. However, at the same time, all kinds of social problems also increased in parallel. The emergency of more and more social injustice aroused great public indignation. High-rank government officials corruption are frequently exposed in public media, usually involving large sum of illicit money and complex interpersonal relationship. Justified human rights of common citizens cannot be effectively protected because laws are repeatedly trampled under the foot of privileged classes.
How to solve these problems? The government saw the urgent need to have a more complete and efficient legal system and made ruling-by-law the basic administrative principle of the state. The existing system, which was set up at the beginning of new China in imitation of European patterns, perhaps mainly that of the former Soviet Union, was far from being sufficient to face the new situation. A series of actions was taken, including revising existing laws, making and issuing a lot of new laws, popularizing law knowledge to raise people’s law consciousness and regularizing the profession of lawyer. Some of these measures produced good result. More and more people began to know that they can appeal to law to defend their rights and many of them finally found their justice. More and more cases were exposed by public media and a lot of potential corruption or crimes were restrained. It seems law was successfully doing its duty of setting up a new order in the society.
But people soon found that they were too optimistic. The truth is that under the existing regime, as political power is undoubtedly higher than law, to control the abuse of power by law is not realistic. Even if we had had a complete set of written laws, so complete as that of those European countries we take as our model, they would hardly bear more sense than a bundle of white paper. The government official corruption was not at all held back, in stead, advanced laws give birth to advanced skills of commitment. Moreover, as people were taught to defend their right, there occurred some new cases never heard before, such as teenagers suing their parents for not giving them enough pocket money --- traditionally such kind of disputes were settled within the family. It shows that family ties, which had always been the social base of China, loose down. Another evidence is the skyrocketing divorce rate. In fact, social morality as a whole is decaying. We began to get accustomed with the reviving underground prostitution, frequently happened robbery, rape, defraud, etc.. People who like to help others find their good deeds are often laughed at instead of admired. Saving other’s life without asking for priced repayment is thought to be foolish. Children are taught by their parents to be selfish. Slight graft in companies or in government is half open and almost justified --- those who refuse to do it will be treated as a dangerous guy.
What’s the matter with China? Can we solve all these problems by law? Have we over-estimated the capacity of law: During the course of implementing the ruling-by-law strategy, morality was obviously neglected. What can morality do for us? Can we rely on such a fragile and hypocritical stuff to keep our social order? How can we make a balance between them? Although the scholars still have not reached any overwhelming agreement on these questions, one point is clear: we must pay enough attention to the construction of national morality. These questions are not only discussed by scholars; the government also considered them seriously. That’s why there was Mr. Jiang Ze-min’s Governing-with-morality principle and the Outline for the Construction of Citizens’ Morality.
If we make a deeper consideration, we will find that this discussion is not merely a response to present social reality. Scholars’ hesitation and perplexity in their attitudes towards law and morality is a reflection to the complex cultural conflict between west and east. This conflict can be traced back one or two hundreds years ago around the Opium War, or even earlier to the moment the first western colonists or missionaries arrived the beach of China, and is still going on. In this “cultural war”, traditional Chinese culture was defeated and almost absolutely eliminated, not by foreigners, but Chinese themselves in several movements. Western civilization prevailed in all aspects: politics, economics, science and arts, even the customs. Ruling-by-law, as one of the most significant tradition of western civilization, naturally became the standard political pattern for Chinese.
After having followed west passively for years, some Chinese began to doubt their “teacher”, because it didn’t solved Chinese problems satisfactorily. The reason was attributed to that the speciality of Chinese tradition could not accept and compromise with something in western culture. So they turned back to their ancestors’ thoughts for a better solution. Thus, traditional Chinese culture began to take back its lost territory. The re-evaluation of morality, I think, is one of its steps, or say, results.
In fact, the relation between law and morality had been thoroughly analyzed two thousand years ago by Confucius. His thoughts on law are clearly demonstrated by one of his most famous sayings: directed by orders and regulated by penalty, people may be free from punishment, but they will have no idea of shame; directed by morality and regulated by courtesy, people will be aware of shame and self-disciplined. This sentence is often quoted by some scholars as a proof to support the opinion that Confucius stands for ruling-by-morality and objects ruling-by-law. But perhaps these scholars have miread the sentence.The great man was then the chief judge of his country. And it was recorded that when he assumed office, many high-rank officials had to restrain their illegal deals because Confucius was famous I being strict. But Confucius also said: In judging cases, I’m no different with anybody else; but I am devoted to do is to let there be no suit at all.
Therefore, the real meaning of Confucius should be as following: Law --- in ancient China equals to penalty --- is indispensable for a country to keep its order; but it can only stop people from doing wrong things by scaring them with cruel punishment. As they have no sense of shame, that is, they have no idea that these are what they should not do; they will later try to do it in other ways. Law cannot root out crimes. But morality tells people what are good and evil, what they can do and what should not be done. So morality is the only thing to prevent people from thinking of doing evil.
However, morality depends on one’s self-consciousness. This makes the morality hard to be felt and controlled and hence the construction of national morality very difficult.
Therefore, Confucius’ ideal pattern was severely doubted and criticized by many people. At the end of the Warring State Period, a number of thinkers thought only strict and ruthless law can keep the order of a society. Their opinion was appreciated and adopted by Qin-Shi-Huang Emperor. However, Maybe because the penalty was too cruel, this policy finally lead to the termination of Qin Dynasty. The later Emperors in Chinese history learnt from this lesson and usually took a middle way between the Confucius pattern and Qin Shi Huang pattern. |
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发表于 2007-11-7 16:29:51
