Legal Enforcement of Morality: Principles and Limits

By XIE XIAOYAO

The relationship between law and morality represents a major issue in jurisprudence and the philosophy of law. Superficially, the differences between the two seem clear, primarily in terms of the degree of concern for interests, relationships, or behaviors, the enforceability of norms, and the forms of pressure they entail. The connection between them is mainly evident in the content of norms and the evaluation of outcomes.

However, when considering certain specific issues, the relationship between the two is quite complex. How does law interact with morality as ideas? Are actions considered immoral usually illegal? Legal Enforcement of Morality: Principles and Limits, by Zheng Yushuang, an associate professor from the School of Law at China University of Political Science and Law, attempts to respond to these challenges.

In political philosophy, the classical theory of political perfectionism is often cited to analyze the “legal enforcement of morality.” Political perfectionism means that the state protects or promotes the goodness of people as subjects in a positive way. Two classical arguments in this regard are Joseph Raz’s perfectionism, which favors “autonomy,” and Steven Wall’s mild perfectionism, which emphasizes value pluralism. However, an excessive emphasis on either side may lead to the quagmire of value dogmatism or nihilism.

Zheng attempts to reshape the theory of political perfectionism from connotation and structure. Connotatively, the question of which or what kind of goodness the state should protect and promote cannot simply rely on empirical reasoning or the solidification of empirical facts, but should adopt an evidential manner. Structurally, political moral practices involved in political perfectionism are divided into a two-tier structure: the first tier consists of the various objective values that constitute individual well-being, and the second tier consists of the institutional practices of political moral principles such as rights, freedom, and fairness.

Political perfectionism represents the political philosophy in the book, with the common good underlying its legal philosophy. According to John Finnis, the common good is the most fundamental and important aspect of human well-being, such as knowledge, life, practical rationality, aesthetics, and friendship, serving as the basic motivation for actions and choices. Diverse value stances make moral disputes difficult to settle. To properly address these disputes, the guiding function of the value of the common good becomes apparent.

The author identifies four orders of occurrence for the common good: natural order; logical, methodological, and epistemological order; ontological order, and artificially created order. The pursuit of the common good in practice is often accompanied by the construction of political and legal systems, permeating the four orders of social life. Meanwhile, Zheng makes clear the self-restraint of the common good. The law directs people to participate in the common good, and is itself constrained by practical rationality, thereby obtaining unique second-order values such as the rule of law, fairness, and procedural justice. As such, the common good can play a role in shaping culture and maintaining social order.