It is not as Distinct as It Seems
It is not as Distinct as It Seems:
A Note on the Debates on the Separation of Law and Morals in the Contemporary World
A Note on the Debates on the Separation of Law and Morals in the Contemporary World
Contents
I. Introduction
II. Topic One: Is there any Necessary Connection between Law and Morality?
III. Topic Two: Is It Necessary to Enforce the Morality with Law?
IV. It is Not as Distinct as It Seems
V. Revelations for Chinese Jurisprudence
VI. Conclusion
I. Introduction
After the Second World War, the German courts raised many problems that nearly destroyed the domination of so called “positive law” philosophy since Bentham, Austin and Kelson.[1] Executioners and talebearers defended themselves with this reason: they were enforcing the existed Nazi written law, which was the “positive law of Germany”, so what they did were lawful and could not be sentenced. Although this argument did not find it’s legitimacy in the very judgments to Nazis, it has brought a series of debates around the relationship between law and morals throughout the second half of twentieth century, and the endless debates may continue to the twenty fifth century, if the Marx’s communistic world still hangs on the sky at that time.[2]
The debates on the separation of law and morality throughout the twentieth century are so complicated that one may not accurately summarize all the discussions in a short essay. Nevertheless, this note will briefly introduce some core debates among scholars. Furthermore, I hope to demonstrate hereby that the differences among those prominent scholars’ arguments on this issue are not as tremendous as it seems, though they did distinguish from each other clearly in many aspects. Finally, from these debates, I am trying to find some revelations that may be applied into the legal research in the context of Chinese jurisprudence.