Heaven and earth are orderly, there is a way in the world, and there is no square circle without rules
"Now that the human intellect has comprehended the physical processes of the celestial dome and the earth, ------- mechanical, chemical and organic physics (both plant and animal), there is still a science to flesh out the sequence of empirical science, and this science is social physics. (Excerpt from Law & Ethics)
This is a very interesting passage, I am not good at physics, but I am very interested in the physical laws presented in the social system, and this social physics should refer to the forces and rules that lead to the orderly or chaotic operation of society. In our society, we all know that there are forces and rules that we advocate for, that is, law and morality, but at the same time, society is like the natural world, there are many unregular forces, which make society chaotic and disorderly. If there really is a social physics, then people need to be selective when learning, we need to understand the various phenomena of society, as well as the principles and laws behind the phenomena, but in social physics, what kind of behavioral rules and principles should people follow should also be an important issue, just like the physical laws of the earth's gravity, human society should also have similar earth's gravity-based guiding forces, that is, law and morality, but how do we prove that the power of law and morality can ultimately prove to be correct and inevitable。
1. The relationship between law and morality
From the perspective of legal history, the discussion of the relationship between law and ethics began very early in the West, and law and morality cannot be discussed in isolation from the relationship. Before the 16th century, jurisprudence was only a branch or application of theological philosophy. The ancient Greek theory of justice according to nature and justice according to custom or law contributed to the distinction between the law of nature and the law derived from custom or mere law. (Law and Morals, Roscoe Pound): The Greek commentary in the past has shown that law is a gift from God, and law is the teaching of wise men. Ancient people, like modern people, tried to find out the reliable security of the social order by comparing the constancy and universality of the everyday phenomena of the natural world, a law similar to that of physics or astronomy, but it is clear that this ideal has never been realized. Natural law is derived directly from reason, but ultimately from God, and natural law is the reason of the divine wisdom that governs the entire world.
By the 19th century, Kant had developed his theory from the idea of the conscious individual with free will as the ultimate metaphysical basis, and he deduced from the harmonious coexistence of reason among free will to an ultimate principle of power. i.e., "The reason why acts of the will or spontaneous choice are considered only is that they are free and concern whether one man's actions can live in harmony with the will of another according to one universal law, and therefore the right to Paul sets out all the conditions under which the spontaneous action of any one person can live in harmony with the spontaneous action of every other individual in reality, according to a free universal law." Natural law has entered a new era.
But only the analytic jurists advocate that there is no need for any basis, emphasizing that, as far as judges or jurists are concerned, the law is a system of norms promoted or enforced by the sovereign, based on itself, and if we are to get out of this system of legal norms, the analytic jurists let us turn to political science. Analytic jurists believe that the philosophical analysis and definition of law belongs neither to the history of law nor to the doctrine of law, but to the field of political theory.
The preceding texts deal mainly with some of the developments of Western jurisprudence, giving us an idea of how law has repeatedly become the unchallengeable authority of the state as the legal norm. Nowadays the law has become the most important and effective form of social control, but in the early days of legal development, religion, law, and morality were actually mixed with each other in a simple form of social control.
The analytic school of American political science has promoted a radical cleansing of moral norms, limiting political science to descriptive methods of analysis and leaving the question of what should be left to philosophers. The issue of law becomes delicate and complex, and it can transcend national borders, and it is also an important challenge and difficulty faced by modern legal practitioners.
In the stills of "To Kill a Mockingbird", the social challenges faced by lawyers are often complex
Analytic jurists believe that law and morality are distinct and unrelated, and they are concerned only with law. Law and morality are linked only in these four contexts, namely, judicial legislation, interpretation of legal norms, application of law, and judicial discretion. There is a border between law and morality, as long as there is a complete distinction between judicial power and legislative power, then law belongs to the courts, morality belongs to legislation, legal norms belong to jurisprudence, and moral principles belong to ethics.
The controversy over the relationship between law and morality in the West centers on the question of whether the direct goal of the legal order is consistent with ethical habits, or should it be distinguished from ethical habits and placed above ethical habits?
We have devoted a lot of space to a general combing of the relationship between law and morality in the West, (most of the above content is excerpted from "Law and Morality", Rothko, Pound, published by China University of Political Science and Law Press in 2003), but the relationship between law and morality We can see that the birth of law from a historical perspective cannot be separated from theology, from the scope of ethics and morality, and the later ones separate law and morality from the level of judicial execution.
2. The earliest Zhou metric system in China is a unity of morality and law
When we look back at China, there are quite a few similarities. From the very beginning, our ancestors regarded ritual law as the national belief of the country, and at the same time assumed the systematic tool of governing the country and the people. "Those who are courteous are in harmony with the heavens, set in the earth's wealth, obey the ghosts and gods, conform to the hearts of the people, and manage all things. The earliest Zhou metric system is a unity of morality and law, which has both moral norms and legal norms, and is the norm for adjusting politics, economy, military, justice, education, marriage and family.
Confucius made a more specific analysis of the role of law and etiquette, "The Tao is governed by government, all are punished, the people are free and shameless, the Tao is virtuous, and the whole is courteous, shameful and qualified." We can see the wisdom of Confucius's governance, the law can restrain people's behavior, but it cannot arouse the people's shame, morality, and governing the country with etiquette can solve this problem. This ritual can be understood as morality. Governing the country with ethics and etiquette can ensure the long-term peace and stability of the country from the perspective of educating people. It can be said that China is the country that attaches the most importance to education in the world.
The Shang Dynasty Reform Law laid the foundation of a centralized political system, but individuals could not die well because of the interests of the powerful
During the Warring States Period, Legalism also appeared on the stage of history, and occupied an important position on the stage of Chinese history, after the reform of many countries in the Warring States Period, the central economic foundation and political system were laid, and the centralized bureaucratic political system headed by the monarch has been shrouded in the land of China for more than 2,000 years, from the pre-Qin period to the outbreak of the Xinhai Revolution.
The focus of Confucianism is to believe that the human heart is inherently good, and how to start from the original heart of the person and positively guide and restrain the behavior of the person.
The West, on the other hand, focuses more on the rational understanding of the evil of human nature, so it has worked the systematic management of the law, people, and society, and the West pays more attention to the power and dignity of the individual, after all, "the autonomy of civilization and civilization is the respect for the dignity and ability of the individual." ”
We should realize that these two different ways of social management are very important, but today, our legal system seems to be more and more comprehensive, but it cannot fundamentally solve many problems of human evil. We will still find that the law sometimes does not completely solve certain criminal problems, and even because of the existence of certain legal provisions, real criminals will escape the punishment of the law, which is contrary to the original intention of the law. Many film and television works have reflected that lawyers are unable to face their conscience after exonerating criminals. Some of the behaviors of people in the law are not necessarily the acts of upholding justice, and even if they follow certain norms and standards of behavior in full accordance with the law, there is still a possibility of huge mistakes. Lawyers' professional ethics obviously play an important role in ensuring the fairness of the law and the benign development of the legal society, and if this profession and practitioners in the entire field lose their professional ethics and take their own practical interests as the standard of behavior, the negative impact on society is unimaginable.
3. Professional ethics of legal practitioners
More than 100 years ago, in 1908, the American Bar Association first codified the code of ethics and issued the "Standards of Professional Ethics for Lawyers", but because of the omission of some important related areas of practice, lack of coherence, and failure to give lawyers proper guidance, it was widely criticized by the industry, and the "Code of Professional Responsibility for Lawyers" promulgated by the National Bar Association in 1969 This rule was adopted quickly but kept changing, and many of the revisions and controversies focused on a simple but complex topic, that is, whether a person can be a good lawyer and a good person at the same time.
The key to best understanding the proposition of a competent lawyer is to investigate and research the ethical aspects of the profession. "Legal ethics differ from general ethics, which discuss generally accepted moral standards, while legal ethics discuss the morality of a particular person's profession and involve the conscience and virtues of a particular person. "
The domestic crime movie "No Man's Land" tells the thrilling story of a lawyer who has lost his professional ethics after entering the no man's land, in the no man's land that has been cut off from the outside world, the evil in human nature has been greatly released, the protagonist lawyer, is a mercenary, greedy and selfish, and a villain with no professional ethics bottom line, after entering the no man's land, his humanity is also constantly degenerating, but he finally found his conscience and completed the redemption of his own humanity. The biggest difference between a lawyer and a prisoner is conscience, the bad guy always focuses on his interests and does not care about the life or death of others, while the lawyer still has compassion and the idea of saving people. When China talks about morality here, it has to talk about conscience. Professional ethics must be related to conscience, and Western lawyers' professional ethics still attach importance to this.
The professional ethics of lawyers in the United States should be a very meaningful and valuable professional code of conduct, when I first saw this book "The Bottom Line of Lawyers' Professional Ethics", I was very surprised, at least I saw the professional conduct standards for the first time, the requirements of professional ethics are integrated into the key professional behavior module of lawyers, I think this is a very valuable creation of some integration of law and morality. The United Kingdom was the first country in the world to develop standards of professional conduct, but there should be no professional ethics standards for key professions in the legal field, as in the United States. We can imagine that if all professions in our social system can formulate detailed and comprehensive professional ethics and professional behavior norms, our social governance level and social development management will enter a new stage. Law and morality are like the basis of the gravitational force of the earth in human society, and clarifying the legal rules and moral rules of professional behavior can help our society move towards a standardized, orderly and benign development.
In this professional ethics system, the professional ethics requirements of lawyers in the key behavior modules are discussed and determined, including the behavior requirements in the adversarial system, the ethics of lawyers and the autonomy of clients, the relationship of trust and confidentiality between lawyers and clients, as well as the analysis of the situation in the face of perjury, the prevention system of lawyers in the face of various conflicts of interest, as well as the ethics of judges and prosecutors, the correct understanding of lawyers' "enthusiastic" professional performance, and the guidance requirements of lawyers' advertising.
They emphasized that the professional standard of a lawyer's enthusiasm should be to represent the client within the framework of the law, and furthermore, the Code of Responsibility emphasizes the responsibility of the lawyer to represent the client with enthusiasm, not only for the individual client, but also for the judicial system itself, as stated in the interpretation, "Under our rule of law government, the actions of every member of society have the right to be regulated and judged in accordance with the provisions of the law, and the legitimate goal must be achieved through the means permitted by the law, and any legitimate claims and defense should be represented." Thus, when a lawyer serves his client, he also serves justice in a free society. A lawyer serves his clients, but is not their servant.
In the real world, both at home and abroad, legal practitioners are faced with many similar problems and contradictions, and many film and television works at home and abroad involve this issue, but the agreement and requirements for the professional ethics of legal practitioners are absolutely necessary. Because, "the greatest motivation for lawyers to pursue ethical conduct possible, the desire to gain respect and confidence in the profession and the society they serve." ”
To this day, to solve the problems of the social system, perhaps we should really go back to the original goal of the earliest establishment of law, law and morality, and the responsibility and mission that human beings themselves should bear, in the West, it is related to the will of God, in China, it is related to the will of God, in short, a person walking in this world, must abide by the rules and moral norms. Today is the execution day of the murderers of the mother murder case and the child murder case that shocked the world, and the main culprits in these two cases have broken through the limits of law and morality, and have gone to the top of evil, and their evil deeds are even inferior to animals. It can be described as lawlessness and loss of conscience, and such unworthy people must be destroyed by heaven and earth. What should cause the society to reflect on these two cases is the complete degeneration of the main culprits in the field of morality, which should also make some modern people who only attach importance to the legal system but not to morality re-examine the important role that education and morality should play.
Power and law are the products of the will of the nation, but a nation can only stipulate things that express the process of its own civilization and the needs of the times. Therefore, power and law are developed in the dimension of space and time, as a humanistic fact, power and law have a long history, and an excellent nation knows how to systematically and comprehensively absorb Chinese and foreign civilizations, and perfectly combine law and morality, perhaps in order to solve many problems that arise in reality.