迪尔凯姆论法律的道德精神

法律与道德的关系问题一直是法哲学、法理学和法社会学关注的焦点.这个问题也是迪尔凯姆法社会学思想中的重要内容之一.迪尔凯姆将社会团结视为以社会集体意识为基础的一种整体上的道德现象,而法律则是社会集体意识的表达,是体现社会道德的"看得见的符号".社会集体意识和道德规范的社会变迁必将引起法律制度的相应变化.把握迪尔凯姆法社会学思想的精髓,将有助于我们正确认识法律与社会道德的紧密关系,厘清当今中国司法实践中出现的法律与道德的冲突与矛盾.

Durkheim's View on the Moral Spirit of Law

The relation of law and morality has been a point of joint concern for jurisprudence, the philosophy of law and the sociology of law. It is also the focal point of the thoughts of Durkheim on the sociology of law. For Durkheim, the analysis of legal doctrines provides a route towards an understanding of social cohesion. Society is, for Durkheim, a moral phenomenon. Social cohesion depends on the moral commitment to collective welfare. Law is the visible ' index' of this invisible moral milieu, different forms of law expressing different kinds of social cohesion. Thus, penal or repressive law expresses and guarantees what he calls mechanical solidarity. What Durkheim calls restitutive or co-operative law (typified by contract law in its modern Western forms) concerns not primarily with punishment but with compensation or restoration of the status between parties in conflict. It reflects and guarantees a different kind of social cohesion which Durkheim terms organic solidarity. For Durkheim, law and morality are inseparable. With no moral commitment to support it, law is not a part of the society but mere words written on official papers-barren and socially irrelevant. Moreover, changes in social morality would set off the evolution of law. Durkheim' s primary contribution to the analysis of law as an integrated mechanism in society lies in his attempt to reconcile the apparent absence of universally shared values (tthe collective conscious) as the basis of cohesion in modern societies with the belief that society is a cohesive system of moral regulation and that law is, in contemporary secular societies, the primary expression and support of this moral system. In judicial practice, there are cases which reflect the conflicts between law and social morality in China. For example, there are several similar judgments from Shenzhen, Shenyang, Shanghai in which pedestrian collided with vehicles and the drivers had no responsibility if it was the others' fault. Another example is Liu Haiyang, a student of Tsinghua University, who splashed sulphur acid at the bears in Beijing Zoo in 2002. With no penalty provision to punish him, the court finally acquitted him of the crime. The view of Durkheim helps us understand the relation between law and morality, and transform the contradictive aspect of the judicial practice in China.