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Published : May 08, 2010 | Author : faisal
Category : Miscellaneous | Total Views : 5745 | Rating :


"For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed, the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price”[1]

“We must not expect a good constitution because who make it are moral men, rather it is because of good constitution that we may expect a society composed of moral men.”[2]

In the dawn of the civilisation, it was presumed and often said that law and morality are same. Later on, the distinction was made between the two. In India, the commentators not only pointed the distinction but also dropped in actual practice those rules which were purely based on morals and doctrines like “factum valet” were recognised, which means that an act, though in contravention of some moral injunction should be considered valid if accomplished in fact. Similarly in Europe, the doctrine of natural rights, the Greeks formulated a theoretical moral foundation of law. Likewise, the Roman jurists recognised, in the name of natural law, certain moral considered as the basis of law. During the Middle Ages, Christian morals were supported by many jurists. After the Reformation in Europe, it was contended that law and morals were distinct and separate and law derived its authority not from morals but from the State. Morals had their source in religion or conscience. During the 17th and 18th centuries, the theories of natural law had a moral foundation and were linked with morals. However, it was strongly contested by the positivists like Bentham and Austin in the 19th century and they argue that law “is” what the sovereign say, irrespective of what it “ought” to be. For Bentham, pleasure and pain were the ultimate standards on which law was to be judged[3]. It is for reason that Bentham had spoken of justice in a deprecatory fashion and had subordinated it completely to the dictates of utility. Austin criticized Lord Mansfield for importing moral consideration into some of its judicial opinion.[4] Austin was supported by many jurists. Kelsen maintained that only the legal norms were the subject matter of jurisprudence. He excluded from the study of law all other considerations, including morals[5]. To counter this view the Natural law theorists argue that law is connected with reason and conscience.

Nevertheless, it is interesting to note that Austin did not deny that moral influences were at work in the creation of law though he allowed nowhere in his theory any place for the moral element while defining the nature of law. However, there has been a kind of shift in the positivist approach. The positivists of the 20th century like Hart and Raz somehow consider moral influence in law. For example Hart said that it is not immoral for husband and wife to have intercourse with each other but it would be offensive for them to do so in public. That is why such behaviour is rightly forbidden.[6]

These apart, the contemporary natural jurists like Lon Fuller maintained that it is impossible to study and analyze the law apart from his ethical context and said that law must contain minimum morality[7]. Besides, there is again a new trend in modern times. The sociological approach to law indirectly studies morals also although a distinction is made between law and morals and law alone is considered as the proper subject-matter of study. However, they study others forces also including morals while tracing the origin, development and ends of law.

Both law and morality are dynamic concepts. “Law” means a body of legal rules that are intended to alter behaviour and that are determined and enforced by the state, when a person violates law the state imposes legal sanction upon him. On the other hand, the word ‘Morality’ comes from the latin word ‘moralitas’ which signifies manner, character and proper behaviour. It has three principles :

1. In its first descriptive usages, morality means a code of conduct held to be authoritative in the matter of right and wrong. Morals are created by and define society, philosophy, religion or individual conscience

2. In its second, normative and universal sense, morality refers to an ideal code of conduct, one which would be expoused in preference to alternatives by all rational people, under specified conditions. To deny morality in this sense is a position known as “moral scepticism”.

3. In its third usage, morality is synonymous with ethics, the systematic philosophical study of the moral domain.

Thus, morality means rules of conduct that are associated with certain distinctive psychological and social attributes. When a person obeys the rule, he will tend to feel virtuous, and if he disobeys he will tend to feel guilty. It is well understood that to live in a democratic civilized society both law and morality play a vital role. Fuller distinguishes between morality of duty and morality of aspirations. Morality of aspiration refers to morality of good life, of excellence, of the fullest realizations of human powers, wherein a man could be condemned for failure. Morality of duty starts at the bottom, unlike morality of aspirations which starts at the top; it is the morality of Old Testament, and Ten Commandments. It condemns men for failing to respect the basic requirements of social living[8]. The views of various schools on law and morality as presented by Roscoe Pound are[9] :

Historical – 1) Law and morality have common origin, but diverge in their development.
2) Morality is in fact more advanced than law.

Philosophical – Influenced by German jurists discussion e.g; “Rechts” and “Sitte”, they assume that court’s decision’s ought not to be legal percept if it opposes moral precept. Moral precepts are legally obligatory.

Analytical – 1) Austin : Law and morality are distinct and unrelated.
2) Law and morality in legislation and judicial system are separate in the development of law.
3) First point of contact : Morality to be looked to only in an immature stage of legal development before separation of power is complete.

4) Second point of contact is judicial interpretation to which Austin disagreed by differentiating between ‘spurious’ and ‘genuine’ interpretation.Sociological – 1) Law and morality are forms of social control
2) Proposes three things that are to be regarded in administration of law as follows :
a) Justice, ideal relation between men.
b) Moral and ideal development of individual character
c) Security.
3) Jurisprudence is practical science. It can neither dispense nor wholly depend on ethics.

We understand that both morality and law are regulators of human conduct. However, they differ in some aspects, firstly in the time associated with their establishment. The establishment of legal rules ordinarily is a relatively less time consuming process, be it through an enactment by a legislative body or through a judicial precedent that helps to articulate a rule. Unlike law from a social perspective, the establishment of moral rules evidently requires years of continuance when this occurs through socialization. To instill the moral rules that “one should not kill, or lie, or cheat, and the like, requires constant effort over the years of a man’s childhood. Law gets enforced by way of threat of sanctions and morality gets enforced by way of a feeling if virtue or guilt. For a moral duty one looks for a reason to do so, however for a legal duty it depends more on the authority than reason, it has a nature of command. As it is said “law comes from the barrel of the gun”. Some view that law is similar to religion as in religion also one follows the command of the god. Positivist jurists like Bentham and Austin argue that law is independent of morals. Another possible way to distinguish between moral and legal norm is on nature of conduct, law prescribes external conduct while internal conduct is prescribed by morals. At this point, there is no doubt whatsoever that law and moral are not same. Nevertheless, morality plays a vital role in the process of legislation as well as interpretation of law.

Role of Morality In Legislation
In England, with the rise of the Court of Chancery and development of equity and the general notion of right and wrong held by the chancellors were made liberalizing agencies. In the Continental Europe of the 17th and 18th century, the philosophical ideas of juristic writers upon the law of nature were used in the same way. Thus, moral duty was turned into legal duty. The individual human being as the moral unit became the legal unit. In other words, moral principles become an equitable principle and then a rule of law in legal systems. The role of morality in law making may be studied under the following heads :

1) Criminal Law – All the laws against violence and fraud are grounded in the morality of the people and in turn, the morality of the people is influenced by those laws. The morals with which the criminal law is concerned are the morals of the society. In this context, Gerald Abrahams[10] said that without the aid of some moral ideas, the understanding of criminal law would be difficult since criminal laws embody moral rules. Similarly, Lord Devlin observed that morality provides a firm structure to any human society and that the law, especially the criminal law must regard as its primary function to maintain this public morality. According to Devlin, the State may claim on two grounds to legislate on matters of morals. It could function to promote virtue among its citizens or alternatively, society may legislate to preserve itself. The view of Lord Devlin received support from the House of Lords in the Ladies Directory case[11] wherein Lord Simmons held that a conspiracy to corrupt public morals was a Common Law misdemeanour in England. This case would serve to emphasize the role of values as the ultimate source of law. In this case, a person was prosecuted for printing and selling a classified list of prostitutes with their addresses and phone numbers. It was contended that what was done by the accused was not contrary to law. Simmonds rejected the contention by emphasizing the duty of the judges to preserve moral standards. It was held that, the accused was guilty of an attempt to undermine public morals. Moreover, barring few exceptional cases of strict liability, one of the established principle in criminal law is the idea of mensrea. That is, to hold a person guilty of an offence, both guilty mind and act must constitute together and the ingredient of intention is nothing but an application of morality, since it is often said that morality is concerned with the inner feeling. Therefore, for enacting a criminal law, we apply morality. In other words, in the absence of morality, the definition of crime would be incomplete.

2. Custom – Secondly, custom has been considered as one of the most important source of law. To be valid custom, one of the essential is that it should not be immoral. In number of cases, the courts held the custom invalid on the ground of immorality like in the case of Madhura Naikin vs. esu Naikin[12], the Bombay High Court has held that the custom of adoption of girls for immoral purpose is illegal. Likewise, in Balusami vs. Balakrishna[13], the custom permitting marriage with daughter’s daughter has also been held immoral. Therefore, in the name of good custom, the moral principles or morality is being enforced.

3. Sources of law – Apart from custom being the source of law, all other sources of good law is definitely based on the moral grounds. Say a nation just got independence, now among other things; this nation definitely needs sound legal system for the working of the administration. To start fresh, the said nation will definitely consult the law of the already established nations and one of the means for judging the law would be morality. For example, if this nation picks up a law of the country where adultery is not punishable, it will surely try to judge that piece of legislation on the ground of morality and may not copy that law as it is somewhat immoral not to prohibit adultery. Similarly, if this nation comes across the law which impose very low rate of tax on liquor, it may reconsider it on the basis of morality that by imposing low taxes on liquor, it will encourage the citizen to consume more of it, which is not a sign of very good society as the drunkards would likely to be involve in immoral crimes. So, these laws may be rejected on moral ground.

4. Dynamism - Morality helps in maintaining the dynamism of law. As the society progresses, the moral values also undergoes change which is sometime good for the society. For example, some years back, discussing sex related topics was a taboo in the Indian society. In fact, it is still awkward for some parents to educate their children about the sex related issues. Thereafter, some people realises that sex education is very essential especially for a teenagers. This happens after the recognition of fatal diseases like AIDS etc. Now, the active legislature may think to legislate on a matter of sex education to children. Therefore, what was considered immoral some years back become moral and quite rightly so. This helps the law maker to legislate on such matters as the society is ready to accept. Hence, law can keep pace with the dynamism of the society.

Role Of Morality In Interpretation Of Law
Apart from the role played by morality in legislation, the importance of morality can be better appreciated when it comes to interpreting the law. Almost, all the writers including the positivists do agree that there are gaps in the legal system, which some believe is inevitable and to fill this gap, morality is one of the test. In this respect, the views of Hart, Dworkin and Joseph raz are worth mentioning.

Hart says that the legislation at some point of time prove indeterminate; which he termed as “open texture of law” because as per him the world is not characterized by a finite number of feature, so that provisions could be made in advance for every possibility. In this situation, Hart says that in some extreme cases of what is or is not a “fair rate” or “safe system” will not always be identifiable ab initio. For example of rate of vital service if very high it is a kind of ransom and very low then the enterprise will fails to make profit. Secondly, in situation where it is impossible to identify a class of specific actions to be uniformly done or forborne and to make them the subject of a simple rule, then common judgements of what is ’reasonable’ can be used by the law. This technique leaves to individuals, subjects to correction by a court, the task of weighing up and striking balance between the social claims which arise in various unanticipated forms.

Thus, the open texture of law means that there are, indeed areas of conduct where much must be left to be developed by courts or officials striking a balance, in the light of circumstances. Between competing interests which vary in weight from case to case.

Similarly, Dworkin refers this gaps in the legal system as “Hard Cases” and Joseph Raz[14] maintained that there are two kind of gaps in the law namely;
i) Jurisdictional Gaps - A legal system is jurisdictionally complete if its court have jurisdiction over all legal questions. It has a jurisdictional gap if its lack jurisdiction over certain legal questions.

ii) Legal Gaps – A legal system is legally complete if there is a complete answer to all legal questions over which the courts have jurisdiction. It contains a legal gap if some legal questions subject to jurisdiction have no complete answer.

So, at this point of time, it is crystal clear that there are gaps in legal system which the court is supposed to fill up. Among other thing, like earlier precedent etc. ,, the court can definitely take the help of morality in deciding cases where there is no clear law or the law is ambiguous. This situation may arise in the following cases :

1. Unforeseen future action - Morality serves as a guide in situations where law cannot anticipate perfectly. Consider the case of Dudley & Stephens[15]. Three sailors and a cabin boy were shipwrecked and were adrift in an open boat 1600 miles from land. After they had been eight days without food, and six without water, Dudley decided that their only chance of survival was to kill the cabin boy and eat him, and this they did. Four days later they were picked up by a passing ship, and on returning to England were convicted of murder. The court Held that ‘Necessity can never be a defence to murder. Their sentence of death was later commuted to six months' imprisonment.

2. Law is not exhaustive - In imaginary situations like ‘Who would own a previously frozen ova post divorce, husband or wife?’ Also who (father or mother) to be given the custody of an existing child, often the courts rule in favour of the parent who would ensure the best interest of the child. In these cases, it would be wrong to say that there is no law on the point. The law says that “welfare of the child is of paramount importance”. Now the question naturally arises that where is the scale for judging the welfare of the child. There may be a lots of questions like whether welfare should be judge on the basis of the fact that child should be given to those parent who can give a decent food to the child because he own a departmental store or to those parent who can give good medical facilities to the child because he himself is a doctor or to those parent who is not working and stays in home because he/she can look after the child all the time, but again the problem is since he/she is not working, therefore he may not have sufficient means to maintain the basic needs of the child or child should be given to those parent who is having money to feed the child but the problem is he will hardly get a time in this age of privatisation where even after the office is over, the executive is carrying the tasks in the laptops and work it out in the home or should the child be given to literate parent or should the child be given to mother because the child is a new born or should it be given to father because the child is reasonably grown up and wants to stay with his father, the reason may be that the mother is unchaste or the child may wants to live with his mother because the father has remarried again and so on. Now all these above questions are not given by the law for judging the welfare of the child. The court will consider all these questions on the ground of rationality and apply those questions only which are fit and suitable, which in turn infers the application of morality. Besides, sometimes fundamental rights like right to privacy are curtailed by enforcing morality as laid down by the Supreme Court of India in the landmark judgement of Mr. X vs. Hospital Z[16], the court held that if a person suffers from venereal disease or impotency his right to marry has to be treated as suspended right till he is cured of the disease and in such condition the right to marry cannot be enforced through a court of law. The Court expressly laid down that for the prevention of crime, disorder or protection of health or morals or protection of rights of freedom of others, right to marry can be restricted.

3. Ambiguous Statute - In the present day’s bulk of legislation, ambiguous and contradictory laws are inevitable because we are living in the age where the rules and the legal provision are endless and hence contradiction is bound to arise. So the general conception that law help in maintaining certainty is somewhat misleading in the sense that the huge numbers of enacted codes sometimes actually create confusion in case of application and this lead to contradictions. This apart, the inefficient legislators is also a worrying factor because they are at times expert in creating confusing provisions. For example under Section 5 of Hindu Marriage Act, 1955 among other conditions for the conditions of the valid marriage, one of the condition is that the bride and bridegroom should of 18 and 21 years at the time of marriage otherwise; the marriage would not be treated as valid. Moreover, Sections 12 and 11 mention the grounds of voidable and void marriages and in none of the said sections contain the clause that marriage of below age person will be void or voidable. Now we know that there are only three kinds of marriages under Hindu Law namely; valid, void and voidable. Given these provisions, the marriage of a person say of aged 20 years and 360 days(male) and 17 years and 200 days(female) does not comes under any heads of marriage. Now, the judiciary may take the help of morality in solving cases like this. The judiciary may declare that after 6 months the party may live as a husband and wife as by that time they will become competent. In this way the morality of the society may be protected.

4. Answer against arbitrariness - If the law passed by the legislature is arbitrary, then the only justification to repair the law is morality. For example in the case of Air India vs. Nargesh Meerza[17], the law laid down by the Air India is that the air hostess cannot marry in the first four years of the service and if the hostess gets pregnant, her service shall be terminated. It has been held by the Supreme Court of India that the regulations of Air India are arbitrary and hence declared as the violations of Article 14 and 16 of the Indian Constitution. Now in this scenario though the Court cited the Articles of the Constitution for declaring the rules of Air India as void. But one may argue the interpretation of the Court because equality signifies that equal treatment should be given to the person placed on the same footing. That is “like should be treated alike rather than unlike should be treated alike”. Given this proposition, can we challenge the rules of Air India because the question naturally arises that the Air India did not made the rule only for Nargesh Meerza rather for all the air hostess of Air India and we cannot also compare the rule of Air India with the company XYZ. Besides, court cannot cite the ground of “discrimination on the basis of sex” because it is again inapplicable as all air hostesses are generally females. However, there may existed a service rules passed by the competent legislature which is applicable for all the employers, but we can easily say that this service rules will be merely enumerative rather than exhaustive, for it is not possible for the legislature to foresee all the future course of actions. Therefore, in cases like Nargesh Meerza, the courts can pass a sound judgement only by referring to morality because if the Air India is not permitting the air hostess to marry in his first four years of service, it may be understandable because generally they recruit young women for the post. But since, they are allowing to marry after four years of service, then pregnancy is the natural outcome of marriage which may be challenged on the ground of immorality. In short, equality before law signifies the absence of ‘arbitrary power’, but it is not possible for law to lay down the exhaustive rules of arbitrariness. Therefore, even to judge arbitrariness, we may take the help of morality.

However, the positivists like Hart and Raz say that rule of interpretation sometime give rise to new problems but Raz concluded that this should not be taken to mean that rules of interpretation are of no use in solving problems of interpretation arising from vagueness and indeterminacy.

These apart, sometimes morality plays a direct role in law. That is, it is the test for the validity of the application of law. For example; an agreement to be valid must not be immoral or one of the restriction in freedom of speech and expression is that it should not be immoral. Likewise few would dispute that the manufacturer of unreasonable articles owes a moral duty to the world to be careful. Until Donoghue vs. Stevenson case, the moral obligation was not translated into a legal obligation.

Thus, it is crystal clear that the gaps of the law are filled up by morality. Now, one may ask a question, whose morality I am talking about? The simplest answer to this question would be the morality based on a sound “public opinion”. Now again the problem is it is not practical to accumulate public opinion in each and every cases. The general practice of the court is to apply the test of “prudent man”. Even in this scenario, where we should find the prudent man is a controversial issue. Is the judge himself is a prudent man or the lawyer’s argument to be considered as prudent. It is not denied that this test of morality is somewhat ambiguous but at the same time inevitable also. Therefore, in cases where it is not possible to collect public opinion or which is not prima facie moral or immoral for every body, then we can take the help of the legal experts in the form of lawyers or judges, as one of the role of these experts is to serve the society and barring corruption, we cannot underestimate the fact that they have better knowledge, experiences and exposure than a layman. So, for the sake of authority as well we can rely on the decisions of the Court on the matters not covered by law or in cases of ambiguity or arbitrariness. If law is to remain closer to the life of the people, it cannot ignore moral.
[1] The Philosophy of a Law, ed. R.M. Dworkin, Oxford Press, (1977).
[2] Immanuel Kant, The morality of Law by Lon L. Fuller, (New Delhi, India, Universal Law Publishers Co Pvt. Ltd, Edn. 1969, Reprint 2006
[3] Bentham J., Introduction to the Principles of Morals and Legislation (1823)
[4] H.L.A. Hart (Ed.), The Province of Jurisprudence Determined p. 184-191 (1954)
[5] Kelsen, H. The Pure Theory of Law
[6] H.L.A. Hart, The concept of law p. 182 (Oxford University Press)
[7] Lon L. Fuller, The morality of Law, (New Delhi, India, Universal Law Publishers Co. Pvt. Ltd, Edn. 1969, Reprint 2006. As per Fuller, the law should contain the following which he termed as minimum content of morality namely; 1. law should be general 2. law should be adequately published 3. retrospective operation should not be abused 4. there should be no contradiction in law 5. law should not require the impossible 6. there must be a clarity in law 7. law should change through time and 8. there should be a congruence between official action and declared rule.
[8] Lon L. Fuller, The morality of Law, (New Delhi, India, Universal Law Publishers Co. Pvt. Ltd, Edn. 1969, Reprint 2006
[9] Roscoe Pound, Nature of law, Jurisprudence by Roscoe Pound, (New Jersey, Law Book Exchange Ltd., 3rd reprint, 2003), pp. 213-280.
[10] Gerald Abraham, Morality and the Law 91(1971)
[11] Shaw vs. Director of Public prosecutions, (1962) A.C. 220
[12] (1880) ILR 4 Bom. 545
[13] AIR 1957 Mad. 97
[14] Raz J., The Authority of Law, Essay on Law and Morality, OUP, Ist Indian Reprint, 2008
[15] (1884) CCR
[16] AIR 1999 SC 495
[17] AIR 1981 SC 1829

Authors contact info - articles The  author can be reached at: faisal@legalserviceindia.com

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