Teisinio ir moralinio diskursų antitezė

Abstract

The article takes a new approach to the problem of relationship between law and morality. The 20th century humanitarian culture draws attention to threats inherent in legal discourse: full completeness and logically consistency of the legal discourse, just as of any other functional relationship is relative, i.e. to a certain limit which is defined by the horizons of moral discourse. Defence of opposing interests and justice in a legal system draws a line between the interests of private individuals and their rights while the moral area always underlines individuals’ common interest in initial solidarity, openness and ability to accept one another. Moral discourse came earlier in history and is more fundamental in terms of integrity and securing of solidarity within a human community; it continues to be the primary condition for the legal discourse to work in a straight and non-twisted way. The most outstanding world artists and thinkers (Michel Foucault, Jürgen Habermas, Emanuel Lévinas, Peter Sloterdijk are only a few in the long list) essentially agree about the following: ordinary citizens suffer in case of a minor violation when they find themselves in the field of the coercive power of a bureaucratised legal discourse. Therefore for a rational discourse to be perfect it needs to have a shade of certain irrationality (defined by values).
Legal discourse is in direct relationship with the political and economic survival of the state thus is supported by the system of coercive sanctions. The formal and bureaucratic application of the latter offers room for impunity, licence and cynicism. Actual examples from cultural, economic, political and legal experience point to an opposite tendency where legal matters unconsciously and consciously (which equals dishonesty) are confused with moral matters. Sometimes the significance of a crime can be lessened by inconspicuously changing the type of discourse – by switching from a legal to moral discourse. Discretion is necessary for maintaining justice and legality, while on the other hand one must not forget that any dissociation is only relative, which implies that a legal discourse should always be rooted in a moral discourse since the latter is more fundamental and earlier, it starts and finishes the former. Any law, when in the hands of dishonest lawyers and officials, can become its antithesis. That is why the general moral culture of the public should be developed with particular emphasis on the development of ethics of law enforcement people.