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Published : September 18, 2017 | Author : Ranjini2
Category : Miscellaneous | Total Views : 321 | Unrated

  
Ranjini2
Ranjini Ghosh is a student of class 11 in Gopi Birla Memorial School , Mumbai. She takes keen interest in the philosophy of law , human rights and theories of justice as applied in real life .
 

Law And Morality

We are confronted daily with questions like whether abortion is to be allowed or whether homosexuality is not sinful etc. Issues of law inevitably gets linked with questions of morality . Sometimes there is a clear correspondence between the law and morality , for example when we say that homicide is illegal since everyone agrees that murder is morally wrong . But at other times what may be legally wrong ,like parking on the wrong side , may not be morally so or what may be immoral , like adultery, may not be illegal . Sometimes individual morality may come into conflict with the law of the country . When individuals are required by law compulsorily to join the army and go to war , individual morality may not agree to it . These kinds of situations have been described by East European philosopher Slavoj Zizek in his writings . It also happens that the law may not be in consonance with the larger morality of the society . In the Apartheid regime of South Africa the law was dictated and administered by a white minority discriminating against the black majority . Moral issues and legal judgements may severely polarise people into camps . This happened in the United States when the Supreme Court gave the famous judgement in 1973 in the case of Roe v Wade . In this judgement it was held by the court that the abortion law in the state of Texas was unconstitutional since it violated the right to privacy . This judgement led to fierce debates between the two camps and Ronald Dworkin likened this war between anti and pro abortion groups to America’s version of the European civil wars of religion .

The Natural Law theorists right from Aristotle have argued that what naturally is ought to be . So there is no conflict between what is the law and what it morally should be . Hugo Grotius asserted that even if God did not exist natural law would still matter . Natural law theorists all agree that human beings have natural rights by dint of being human which pre – exists any man made laws . This belief in the pre-eminence of natural rights form the basis of the Universal Declaration of Human Rights(1948). John Finnis argued in his book Natural Law and Natural Rights that a valuable and desirable human life depends on certain conditions like knowledge , aesthetic experience , sociability , religion etc. He had an Aristotelian conception of life. He argued that a leader derived his authority from serving the best interests of the community . Principles of justice have to foster the common good . The philosopher David Hume argued against the Natural Law theorists and said that one could not derive an ought from an is . We cannot derive questions of value from questions of fact . But the view of the Natural Law theorists have formed the basis of the French and the American revolutions .

American jurist Lon Fuller argued that law has an “inner morality” . He said that any legal system has to conform to certain basic procedural standards . He gave a list of eight such principles any legal system must observe . They are : generality , promulgation , non-retroactivity , clarity , non- contradiction , possibility of compliance , constancy , congruence between declared rule and official action . In any system where these rules are not observed it cannot be said that law exists . But it has been argued by some that this list given by Fuller does not give a moral criterion . Even the worst regime may be observing these principles and yet be wicked morally. The Apartheid regime in South Africa did observe procedural fairness yet it promulgated atrocious laws. Fuller stressed a procedural natural law approach over a substantive natural law approach .

An important question that has engaged philosophers of law is whether immoral laws could be regarded as law. The laws made by the Nazi regime were later declared to be immoral in the Nuremberg Trials . But Oxford professor H.L.A. Hart contended that the Nazi law of 1934 was a valid law. Hart is a well- known positivist and positivism as a school of thought holds that what is important is the law as it is or as it is posited . There is a difference between what the law actually is and what the law morally ought to be . He argued that it is important to keep these two separate in any analysis of law. In Britain in 1957 the Wolfenden Committee which was appointed to examine homosexuality and prostitution concluded that there has to be a realm of private morality and immorality which is not the law’s business . It recommended the decriminalization of homosexual acts between adults in private and prostitution . The Committee was influenced by the views of John Stuart Mill who had argued that the only purpose for which power can be rightfully exercised over anyone against his will is to prevent harm to others. Lord Devlin argued in 1959 against the recommendation of the Committee that society has a right to punish conduct which is grossly immoral since society is maintained by shared morality . Immoral acts undermine social cohesion and this is so even if they are done in private and do not harm anyone . But Professor Hart took issue with Lord Devlin and argued that society does not require a shared morality since in multicultural societies there may be competing ideologies . But he acknowledged that the law was sometimes needed to protect individuals from their own self. Law cannot allow the defence of consent to homicide . The same will be the argument requiring the wearing of helmets by motor vehicle users . Hart made a distinction between harm caused by public spectacle and offense caused by mere knowledge . On this argument of Hart bigamy can be punished as a public act since it may offend religious sensibility . But private consensual sex acts by adults can cause offense only through knowledge and therefore may not justify any punishment .

Hart believed that laws are to be enacted to protect persons and their property . He did not believe in the concept of natural law. The most important aspect of law according to him is the existence of certain rules and procedures that are accepted by officials who are to implement them . He divided legal rules into primary and secondary rules . Primary rules proscribe violence , thefts etc. But when societies become complex there arises the need to adjudicate upon rules. Secondary rules are rules of change , adjudication and recognition . He emphasized that rules or laws in a society must not only be obeyed by members of the society but officials who are in charge of implementing such rules must accept such rules from an internal point of view . Thus there is a difference between a rule and a habit. He gives the example of chess players who all have the similar habit of moving the Queen in the same way but they are not just moving the Queen but from the internal point of view of the players they accept this manner of moving as a standard to be observed . Hart also gave an example to distinguish between “ being obliged” and “ having an obligation” . When someone points a gun to our head and asks for money we are obliged to obey but we have no obligation to do so because there is no rule which imposes such an obligation on us . He argued that a legal system exists if primary rules are obeyed in a society and the officials in charge accept the rules of change , adjudication and recognition .

The positivist view as expounded by Hart sees law as a system of rules . Judges decide cases by applying the facts of the situation to the rules laid down in the law or judicial precedents . But when there is no applicable rule to a peculiar set of facts, then the judge uses discretion to fill in the gaps in the law . Ronald Dworkin has challenged this view and has argued that law does not consist just of rules but also there are non-rule standards : principles and policies . A “principle” is a standard to be observed because it is a requirement of justice or fairness or some other dimension of morality . A “policy” is a kind of standard that defines goals to be achieved economically , politically or socially . In “hard cases” when there are no guiding rules to apply,a judge then examines various principles instead of resorting to his discretion or personal preference . Dworkin essentially argues against the positivist view that judges have discretion in such cases . But instead, he argues , there is always one right answer even in such a case where there is no applicable rule. Individual rights have to be balanced by examining various principles . Judges do not legislate but only enforce rights that have already been enacted by the legislature in the form of laws . Hence judges have no discretion even in such cases. A judge merely has to interpret the rule from existing legal materials and if a clear cut rule does not exist to guide her then she has to rely upon principles and policies . There is absolutely no scope for judicial discretion to fill in the gap , contrary to what the positivists claim .

He said that law is integrated with morality and lawyers and judges are working political philosophers of a democratic state . He argued , as discussed above , that the law contains a solution to every problem no matter how hard the facts of the case may be . The judge according to him , does not make law but only interprets it . For example in a particular situation an impatient beneficiary under a will murders the testator . The question is should he be permitted to inherit . This question arose in the famous case Riggs v Palmer (1899). The will in this case was validly executed in favour of the murderer. But the question was whether a murderer could inherit . The existing rules did not have solution to such a problem but the court in New York held from drawing upon a principle of law that no person should profit from his own wrong . Therefore a murderer could not inherit from his victim . Through this example Dworkin argued that the court in giving its decision relied upon principles since there were no clear cut rules applicable to such a case . He argues that when judges interpret and examine various principles and policies they are inevitably examining moral claims of a community . When the judge decides what is right in a particular situation it is so because it is in consonance with the institutional and moral structure of any society . But when the moral claims of a community are examined by any judge then there is a possibility that individual rights may be subordinated to the community’s claims . It is here that Dworkin argues that the law should “take rights seriously”. The rights of the individual cannot be subordinated to the interests of the community but instead rights should be regarded as trumps over community claims. Principles describe rights and policies talk about goals .

***Ranjini Ghosh is a student of class 11 in Gopi Birla Memorial School , Mumbai . She takes keen interest in the philosophy of law and issues of human rights .




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