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Law And Morality In Jurisprudence

Introduction

For living peacefully in a society an individual follows various norms, conducts, values, rules, beliefs, etc. which tell how a person should behave in a society. It becomes important to create the difference between them in order to avoid ambiguity and conflict. One such deliberate effort is always taken when distinguishing between law and morality. These are such concepts which on some parts seem inter-related while in some other parts seem completely different concepts. Many Jurists debated on the same issue of law and morality in Jurisprudence and as a result, various views arose on the topic.

Law

Black’s Law Dictionary says that law is “A body of rules of action or conduct prescribed by controlling authority and having binding legal force. That which must be obeyed and followed by citizens subject to sanctions or legal consequence is a law.”[1]

In simple words, the law is a bunch of rules and regulations formed by the authority(legislature) and enforced by the executive body which has legal sanctity. And which the citizens are obliged to follow in order to avoid the legal consequences.

Morality

Morality in simple words is the principles, values, beliefs and behaviour created and carried forward by the society. They do not have legal sanctity but bind a person to societal obligations or are dependent upon the conscience of the individual.

Example- Going to the temple and praying to God is morality but is not a legal sanction.

Many of the legislations are devoid of morality while there are also many legislations which along with law have morality as the base element. For example- a Live-in relationship is legal but is not in consensus with morality. Whereas, the law against human trafficking has morality as its element.

Law and Morality in Jurisprudence

Law and morals are the systems which govern the behaviour of individuals in society. Laws are rules and regulations which are sanctioned by the authority and are compulsory to follow. While morals are the standards of behaviour that individuals should follow in order to live peacefully with acceptability but they are not compulsory like law. These two concepts have a complex relationship which has evolved over time. In ancient times, law and morality were seen as similar concepts but with time and development, it has been clarified that these two are different but interdependent concepts.

History of Law and Morality

Because of their budding stage, law and morals were not properly distinguished during ancient times. Dharma in India was regarded as the Law and morality. Taking the example of Hindu Law which was primarily derived from the Vedas and smritis, which were actually the values of people. They signified the identicality between law and morals. However, with the advent of Mimansa and commentaries, certain principles were put forth based on which distinction was made between the obligatory rules and the recommendatory rules. The former are the rules which are mandatory to be followed and are considered law whereas the latter ones are not mandatory rules but they are considered good for the person if they are followed, they are the morals.

In the middle age period, the morals of Christianity were considered as the basis of law and the Bible had great influence over the legal regulations.

Relationship between Law and Morality

1. Moral as the origin of law

In ancient times there was no clear distinction between law and morality. And due to this lack of distinction, the origin of every law was found in the principles which people thought as morally correct. In the end, the state selected those morally correct principles and made them into laws, thus forming similarities between law and morality. For example, It is morally wrong to commit theft or robbery, the state gave this moral, the form of law. Even though the distinction between law and morals has been put forth but morals form an integral part of the law. Most of the laws have some or the other principles of morality.

2. Moral as the test of law

Many Jurists are of the opinion that those laws which do not follow morality must be removed, as the end purpose of every law is to impart justice and ensure the welfare of the people.

While making any law it always has to be seen that, whether it is in consonance with moral values or not, if it doesn’t follow the moral standards it should be removed.

3. Morality as the end of the law

Laws were made to serve the purpose of creating a society having the elements of fairness, justice and equality. Laws were made for the purpose of providing justice to a person who suffered from something wrong. And on the other hand, morality provided certain standards to sustain some order in society with fewer conflicts. In other words, the object of morality is to remove conflicts from society. Thus we can see, that the main object of law and morality is the same making both the concepts related to each other.

Difference between Law and Morality

Although we can see law and Morality in some aspects as interdependent and also identical concepts. But there are some factors which differentiate these two.

1. It is the external source from which the law is obtained, in simple words law is derived from the rules and regulations, whereas morality is derived from the individual’s inner self (internal source) i.e. the individual mind of the person.

2. Laws are focused upon the individual’s conduct for which it entrusts certain standards whereas morality is concerned with the innate values of the conduct in other words it is focused upon the motive.

3. Laws don’t change from person to person, it treats everyone the same, whereas morality is a subjective concept, it differs for every person based on their conscience.

4. Laws are influenced by morality, which means they are created by taking morals into consideration. Morality, on the other hand, existed way before the laws were formulated.

5. There is punishment for the disobedience of law but in morality, there is no such punishment for anything done which is wrong morally.

6. Laws are mandatory to be followed as laid down by the sovereign for the people governed by it. However, morality is rather a personal concept it doesn’t lay down certain mandatory conduct have to be followed.

7. Laws control the behaviour of a person legally whereas morals control the behaviour of a person morally.

Philosophies Regarding Law and Morality

The evolution of law was aided by two broad theories of legal positivism (analytical school) and natural law theory.

The natural law theory states that any law which is unjust and hence infringes the principle of morality, cannot be considered as law. In this theory, it is inferred that the laws and morality are deeply interconnected. Natural law gives the idea that Morality in human beings is derived from nature which took the form of rules and regulations. The Central idea behind natural law is that it embodies moral principles which depend upon the nature of the universe and which can be discovered for natural reasons. Jurists who aided this theory of natural law were Augustine, Thomas Aquinas, Lon Fuller, John Locke and many more.

Legal positivism states that legal entities sans morality. The theory does not deny the impact of morals on laws but says that the laws are created by men and hence should have a clear distinction from morality. It emphasises that laws and morality are two different concepts and laws are the result of sovereign power and not morality. Theorists in support of legal positivism were John Austin and H.L.A Hart.

Debate between Hart and Fuller

H.L.A Hart

Hart accepted the law as a command. He emphasised the separation of positive law from morality. He believed that judicial decisions are to be deduced from the pre-determined rules without recourse to social aims, policies and morality. Rational arguments cannot defend moral judgements.

According to Hart, the law is a system having two types of rules providing key to the science of Jurisprudence. These rules are Primary Rules and Secondary Rules. Primary rules impose duties whereas Secondary Rules give power and the essence of law is in the union of these two rules.

Primary rules are binding as they impose a duty upon the individuals whereas Secondary Rules being power conferring, empowers the legislators to formulate or modify policies according to the needs of the society.

Lon Fuller

Lon Fuller criticized his views of Hart on the separation of law and morality. He believed the legal system is made for regulating the conduct of human beings and therefore it must have in law the element of “it is” and “it ought to be”. In other words, it means that law and morality cannot be divorced from each other. Fuller maintained that law is a product of sustained purpose and efforts which contains its own implicit morality. He believes that law cannot fully serve its purpose of imparting justice and preventing misery if they do not conform to the “internal morality”. According to Fuller, eight conditions forming the internal morality are-

  1. Law should be general
  2. It should be publicly promulgated
  3. Laws should be prospective in nature (they should apply to future behaviour, not to the past).
  4. Laws should be clear and intelligible
  5. There should be no contradiction between laws
  6. It should be constant
  7. There must be the possibility to obey the law
  8. The law should be administered in a way that should not diverge from its obvious and apparent meaning.

These eight principles were highly criticized by Hart. According to him, these principles are the means of efficiency and are not defining morality.

Analysis of the Debate

Looking at the thoughts of both these theorists we can say that their object was to achieve justice and order but their ways were different. There are elements which contributes to the formation of law, therefore the matter cannot be simply put as the relationship between law and morals, as so many factors influence law, and one of them is moral.

In some aspects of law, we find the element of morality while in some laws morality does not play many parts for eg, legalising of abortion. We can say that in certain laws, the need for perfectly differentiating between the law and morality has to be identified while in some laws the difference between the law and morality can be set aside and certain overlapping between them can be allowed. But it is always the legal idea which prevails over subjective morality.

Dudley and Stephens Case[2]

In this case, the principles of law and morality were distinguished while punishing the grave offence of cannibalism. According to the facts of the case, the accused were the sea men. Their ship capsized in a storm they along with a boy, about seventeen years of age managed to float on a wooden plank. They continued to drift for many days without food and drinking water. When the death of starvation and thirst was imminent, they killed the boy and continued to eat his flesh for a few days until they were rescued. On being prosecuted for murder, they pleaded that self-preservation was the utmost necessity and they had no option except to kill the boy.

Judgement of the court

The court held that in order to save his own life a person cannot sacrifice another person’s life. And in this case, there was no such evidence which could justify their killing of the boy and hence they were guilty of murder. Although it was considered morally justifiable, for saving the life of all of them their action cannot be legally justified. One cannot kill another person for overcoming the inconvenience of attempting to save his life and claim it justifiable.

Conclusion

Law has heterogeneous properties it contains various elements which contribute to making better law and among these, morality is one the element. In ancient times morality and laws were considered similar concepts but with the development of time, these two concepts were separated and discussed properly. Debates between the theorists lead to the formation of different views regarding the relations as well as the distinction between law and morality. By analysing these two concepts we find that morals in some aspects have an effect on the laws but they do not override the legal entity as morality is subjective.

References

[1]Black’s Law Dictionary, 6th ed., s.v. “law”.

[2]Dudley and Stephens (1884) 14 QBD 273.

[3] Studies in Jurisprudence and legal theory, Dr. V.N Paranjape.

[4] https://www.lawteacher.net/free-law-essays/jurisprudence/legal-positivism.php#:~:text=In%20the%20legal%20positivists%20point,cease%20to%20be%20legal%20rules.

[5] https://legalstudymaterial.com/relationship-between-law-and-morality/#Relationship_between_law_and_morality.

[6] https://www.grin.com/document/1038415.

This article has been written by Simran Kingrani, 3rd Year B.A LL.B Student at the University College of Law, MSU

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