법과 도덕의 비교

Abstract

Not a few legal philosophers have made pilgrimages to two countries; the country of law and that of morals. After coming back from the pilgrimages, they have told how each one is similar or dissimilar to the other. However they have presented quite different opinions: they are identical, similar or quite heterogenous. Even if it is said that the two belong to the group of norms, they do only in a nominal sense. It is wrong to say as if they have something essential in common. The fundamental difference between them can be summarized in this formula: the law is a kind of norm capable of sanctioning the violators, whereas the morals are kinds of norm demanding actors to act as they prescribe. Because the two are radically heterogenous, we have to explain each separately. When we tries to explain such core elements of norms as rights and obligations, we have to divide rights into legal rights and moral rights and explain each of them. So of obligations. Interest theories of rights are adapt to the explanation of moral rights and will theories of rights fit to the explanation of legal rights. As for obligations, a legal obligation is as Justice Holmes once told, a prediction that if a man does or omits certain things sanction might be incumbent on him whereas a moral obligation is as Kant correctly pointed out, what should be conformed by virtue of the internal consciousness of duty itself. The key idea of such a explanation is the difference of law and morals which should be always emphasized. On the basis of the idea, we can explain the concepts of the authority of law and the rule of law more persuasively. When we say the law have authority, it does not mean that the law is observed but that the sanctioning function of legal system is working without hinderance and resistance. The carrier of rule of law should be understood as public officers, and therefore they have the responsibility to control the sanction system to get a desirable state of the rule of law.