Inside the Brain of Lady Justice – Perception, Morality and Democracy

“When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law.”

These words by Frédéric Bastiat seem subjective. A person’s sense of morality and law depends on the nation state of which he is a part and whether that state is a democracy or an example of authoritarianism. This is because a person’s views and expectations only matter if his country gives him the power of having an opinion. You might say how can anyone take away a person’s power of having an opinion? When we closely examine countries like Egypt and Iran, we will witness that, as the citizenry in these nations does not have freedom of speech, their freedom of thought is also taken away. Their ideas and desires are overlooked because they never see the light of the day. Anyhow, we as readers and writers still have the power to read and feed our souls with the bread it so yearns.

What is the essence of morality? How does one distinguish from what is moral and what is right? If the sense of morality is subjective, how does the government find a common ground for all? The answer to all these questions is law. Law brings all the citizens to the same level. At least it aspires to do so if it hasn’t already in your country. The basis of morality and the perception of what is correct and what isn’t, is usually a derivative of a person’s culture and religious inclinations. While a Tibetan monk may shed tears on the use of a plough in the field, as the insects get hurt during this process, an agriculturist is engaged in similar activities all his life. So, what about a monk who’d want to be an agriculturist? Today, people’s idea of morality has become intertwined with what is legal in their territory. One may feel enthralled by the establishment of this common arena, but one must be too naïve to believe that the perception of morality has become binary. Consider the case of Nicklinson v Ministry of Justice (2012), wherein a man pleaded the doctors for euthanasia in lieu of his body’s vegetative state. This case landed the jury in a state of jeopardy. They couldn’t decide what would be the most just verdict, sticking to the derivatives of the principle of Right to Life or taking to their conscience and being merciful. Although, the verdict stuck to the statute, one should be aware of the oft-quoted aphorism “Not only must Justice be done; it must also be seen to be done.” As was established in the case of R v Sussex Justices, ex parte McCarthy.

The naturalist school of thought is exactly what talks about the moral aspect of justice. Authored by thinkers like Thomas Aquinas and Lon Fuller, it talks about an objective moral code order which underlies natural law. Natural laws are the laws which have moulded themselves around human conduct and are easily ascertainable. Principles of equality amongst all, right to life and bodily autonomy are some of the example. They attempt to identify the moral compass in order to pave the way for better legislations. They use reason and revelation (of God) to deduce binding rules of moral behaviour from human nature. Lon Fuller states that, “Morality is the source of law and rules can only legitimately be called law if they are based on moral code”. When these laws are imbibed by a bill of statutes, they give birth to the idea of justice.

The naturalist school of thought appears to propagate the law which would have been enough at the beginning of civilisation. But as we have moved forward in the timeline and have undergone evolution both in a material and biological sense, morality can never be the only determinant of justice.

And so, Jeremy Bentham argues that laws can be immoral. Their basis can lie in other statutes and precedents set by various conventions, for example, abortion laws. Abortion may be right for some and wrong for others. Ask a woman who carries the burden of a forced relationship, you’ll get a different answer from the one given by a human rights activist. The tales of witch hunt during ancient British period are a proof of the same. The state made it legal for people to accuse women of blasphemy and treason if they perceived them to be indulging in witchcraft. One knows what went down in those blackened pages of history as the women screamed for an embrace of justice.

Instances like these call for a separation between morality and legality. Most judges have a positivist approach towards cases. Therefore, they mechanically follow the statute. It separates their sense of morality from the law and does not let their upbringing cloud their judgement.

Philosophers and jurists may argue in favour of different approaches of justice but what makes the fruit of equity so saccharine is its ability to evolve into what it should be. The idea of getting into the nuances of the separation of morality and legality seems apathetic to the non-binary function of the human brain. It is prone to mistake, it is prone to confusing the two, mixing the two or separating the two. The naturalist approach seems too primitive, the positivist is complex but harsh. Common ground is tough to ascertain and repealing of the judicial system threatens democracy. But one thing is certain, sacrifices will be made, books will be written, and houses will roar with debates. Everything will be fair until Lady Justice is stripped off her blindfold.

This article is authored by Varda Saxena student of BA LLB (Hons.) at Jindal Global Law School, O.P. Jindal Global University, Sonepat.

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