试析司法过程中的道德因素

法律与道德的关系是一个古老而常新的话题。在法治国家 ,法律居于道德之上 ,法律具有比道德更高的权威。但是 ,正如众人所知 ,道德形成于法律之前 ,在人类文明发展的漫长一段时期内 ,道德构建了并维持着社会生活的秩序 ,且有效性至今不衰。正是如此 ,法律与道德并非是截然分立的两种社会控制方式 ,两者相互渗透 ,存在一定的重合性。至于道德对法律领域的渗透 ,不仅体现在立法层面 ,在司法层面上亦是显而易见的。本文旨在通过分析司法过程中道德影响的原因、表现及对它的控制 ,对道德因素在司法过程中的影响作粗略的探讨

Analysis on Moral Factor during the Judicial Procedure

The relation between law and moral is an old aged but often new topic. In a ruling by law country, law has the upper position and also the higher authority above moral. However it is acknowledged that moral emerged early before the forming of law. In the long development period of human civilization, moral structured and kept the order of social life, and seemed to be still effecting up to now. This is exactly the fact that law and moral are not two completely separate control patterns, but are permeated each other and assumed a certain coincidence. As to the permeation from moral to law, it is not only incarnated on legislation layer, but also obviously displayed on judicature layer. By means of an analysis on the reason and expression of moral influence, and also its control, this essay aimed to roughly finding out the influence caused by moral factor during the judicial procedure.