Introduction
Even before the beginning of human civilisation, the notion of law existed – the nature follows a certain order – and it exists even today, as we have progressed in every sphere of life as we know it – from the laws of the physical world to the laws we created to keep ourselves in check. Hence, the concept of law is as old as time. Morality, on the other hand, is a concept developed by humans themselves, which exists to govern a man’s behaviour on a more informal basis. In this article, we will discuss the relationship between law and morality.
During the ancient period, there was no difference between law and morality. What was thought to be morally correct was considered as a law. Early civilisations like those of the Greeks and Romans identified ‘natural right’ as a moral foundation for law. When the Church became dominant in the Middle Ages, the basis given to law was that of religion, and morals were according to what was deemed right in Christianity. Even though law and morality may have gone hand in hand, at present, law is largely distinguished from morality. And despite their differences, law and morality have had a strong connection in all ages, and have inspired a number of men to study their relationship.
Philosophy
Morality questions law at every turning point. The rigid separation between law and morality is undesirable and improbable, specially to those studying natural law since they put their basis in the ancient combination of law and morality. But under legal positivism, law should be ‘value-free’, as in the words of John Austin, i.e. it should be independent of morality. But a natural lawyer would argue that putting morality aside from law would take away its essence, since morals provide an ‘objective reasonability’, and that the laws are not simply based on whims and baseless decisions. In this regard, it is significant to note H. L. A. Hart, who, on the one hand, firmly believes that there is no necessary correlation between [law and coercion] and law and morality, whereas on the other hand, states that the authority exercising power must be, at the end, submitted to moral scrutiny. In fact, in Pretty v. United Kingdom[1], the Court of European Union was of the view that it was difficult to separate the legal and the moral.
As per Immanuel Kant, the separation of law and morality can be understood in the sense that the Constitution is a set of laws that governs the external behaviour of man but morality governs their behaviour within themselves.
Thus, there stem two views from the discussion, one, that subscribes to the view that law and morality are singular, mostly stated by natural law theorists, and the other, that subscribes to the view that law and morality are inherently different, which emerges from legal positivism.
Case Study on Relationship between Law and Morality
R v. Dudley and Stephens[2] is a leading English case which questions law and morality separately. In this case, four men were sailing in a yacht when they got shipwrecked far away from mainland. Without having the basic minimum for survival, they started to become weak and sick from lack of clean water. When food became scarce, they started to draw lots in order to choose one out of them who would die and feed the rest of them, or in other words, sacrificing oneself to let the others live. Out of the crew, Richard Parker, who was the youngest and lacked any experience at sea, was in a coma. Dudley and Stephens were somewhat in favour of killing Parker, but Brooks initially refused. The next day, Dudley and Stephens, without express assent or dissent from Brooks, held the boy down and killed him by pushing a pen-knife in his throat. Killing him while he still had some strength left meant that the others would be able to drink his blood, which was a substitute for clean water. Brooks too shared a part in the feed, and luckily they were able to catch some rainwater. A few days later, they were rescued.
When the case went to trial, there were several opinions. The basic question that arises here is: Was this act morally acceptable? And even if it were morally acceptable, would it be legally acceptable? The Queen’s Bench Division, under Lord Chief Justice Coleridge, stated that necessity was not a defence against murder neither on the basis of legal precedents, as were cited by the defence, and nor on the basis of ethics and morality. They recorded their reasons for the verdict, and then sentenced Dudley and Stephens to statutory death penalty.
However, the then Home Secretary, William Harcourt, advised Queen Victoria regarding the mercy plea of Dudley and Stephens, and as a result, they were only given 6 months of imprisonment, after which they were released.
Several other cases, both real and hypothetical, have posed questions regarding law and morality, and their relationship. The Case of the Speluncean Explorers is another famous hypothetical case, created in order to examine this controversy.
Similarity and Subjectivity of Law and Morality
To cut a straight line between law and morality is simply not possible, because some elements of either of the concepts exist in the other. For the sake of argument, we could say that law is a subject of political science whereas morality comes from ethics, if we take out the common from both, we have what is called the ‘code of conduct’. Every society has a code of conduct; if we back it by sanctions and penalties, it becomes a law, but if it simply exists in the conscience of the society, it takes the form of morals. Regardless of the distinction between law and morality, a human being is obligated towards certain duties, such as protecting other human beings from acts that may cause harm, or causing the state, which are essentially our service providers, any loss or damage, financial or otherwise. In Donoghue v. Stevenson[3], Lord Atkin modified a legal principle through a moral principle. He observed that if morality says that I should love my neighbour, the law says that I must not injure my neighbour.
Another major point to be noticed here is that laws and morals both are subjective, i.e. what may be legal or moral for one person may be illegal or immoral for another. In societies with stark differences, we can notice this trend, such as that of India and the US. Not only this, law and morality are subjective to each other as well. What may be legal in a given society may not necessarily considered to be moral, e.g. live-in relationships in India, which, although are legal, are still looked down in most Indian societies. This subjectivity is also a reason for differences in both the concepts.
Conclusion
In the real world, morality is surpassed by law, simply because morality is devoid of sanctions. We may or may not think of doing an act which is morally wrong, but we will not dare to do something that goes against the law of the land. From the judicial point of view, an act may be morally unacceptable, but it would not be unlawful in the eyes of the courts. And the courts cannot simply punish a person for being morally wrong, even if the public opinion says otherwise. The controversy is never-ending, merely because both ideas are too complex in themselves to be able to be sorted out and then their similarities or differences laid out. It is up to a personal viewpoint, and to the philosophy to which one subscribes to.
[1] Application no. 2346/02, Council of Europe: European Court of Human Rights, 29 April 2002.
[2] (1884) 14 QBD 273 DC.
[3] SC (HL) 31.
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