道德是民主法治的关键要素,一部好的法律必定是具备道德性的法律,其中的道德既包括个人道德,也包括社会道德。立法者在立法时对道德要素考量的多寡在很大程度上决定了法律本身的好坏以及法律实施的好坏,但因道德因素具有局限性,立法者在立法时即便作有较为周全的考虑,也无法避开法律在其实施过程中与道德的冲突。从“恶法非法”理论出发,若法律是“恶”的,道德便可直接干预法律之实施,但此种观点颇有片面之嫌。一方面,“善恶”标准众说纷纭,明确其界限并非易事;另一方面,允许道德干预法律实施必然有损法律之权威。要解决道德和法律的冲突,须首先明确道德和法律的涵义,进而明晰道德与法律的关系,找出冲突之症结所在,才能对症下药。 Morality is the key element of democracy and the rule of law. A good law must be a moral law. The morality in it includes both individual morality and social morality. Legislators in the legislative consideration of the amount of moral elements to a large extent determines the law itself is good or bad and the implementation of the law is good or bad, but because of the limitations of moral factors, legislators in the legislation, even if there is a more comprehensive consideration , But also can not avoid the law in the process of its implementation and moral conflict. From the “evil law” theory, if the law is “evil”, morality can directly interfere with the implementation of the law, but this view is quite one-sided suspicion. On the one hand, the standards of “good and evil” have different opinions and clarification of the boundaries is not easy; on the other hand, allowing the law to be morally intervented inevitably undermines the authority of law. To resolve the conflict between morality and law, we must firstly clarify the meaning of morality and law, and then clear the relationship between morality and law, and find out the crux of the conflict lies in the right remedy.