Theory of Relationship between Law and Morality
Ever since the revival of the scientific study of jurisprudence the connection of law and morality has much discussed, but the question is not yet, and perhaps never will be settled. Every variety of opinion has been entertained, from the extreme doctrine held by Austin that for the purpose of the jurist, law is absolutely independent of morality, almost to the opposite positions, held by every Oriental cadi, that morality and law are one. The question is an important one, and upon the answer which is given to it depends upon the answer which is consequences. The problem is an intensely practical one.
The popular conception of the connection between law and morality is that in some way the law exists to promote morality, to preserve those conditions which make the moral life possible, and than to enable men to lead sober and industrious lives. The average man regards law as justice systematized, and justice itself as a somewhat chaotic mass of moral principles. On this view, the positive law is conceived of as a code of rules, corresponding to the code of moral laws, deriving its authority from the obligatory character of those moral laws, and being just or unjust according as it agrees with, or differs from them. This, like all other popular conceptions, is inadequate for scientific purposes, and the jurist, so for at least as he is also a scientist, is compelled to abandon it. For it is contradicted by the fact’s. positive laws do not rest upon moral laws and common notions of justice furnish no court of appeal from the decrees of the State. The average man confounds law and morality, and identifies the rules of law with the principles of abstract justice.
No Distinction in Ancient Times
In the earlier stages of the society there was no distinction between law and morals. In Hindu law, the prime source of which are the Vedas and the Smritis, we do not find such distinction in the beginning. However, later on, Mimansa laid down certain principles to distinguish obligatory from recommendatory injunctions. In the West also the position was similar. The Greeks in the name of the doctrine of ‘natural right’ formulated a theoretical moral foundation of law. The roman jurist in the name of ‘natural law’ recognized certain moral principles as the basis of law. In the Middle Ages, the Church become dominant in Europe. The ‘natural law’ was given a theological basis and Christian morals were considered as the basis of law.
Moral as a part of law
There are some who assert that even if law and morals are distinguishable it remains true that morality is in some way an integral part of law or of legal development, that morality is "secreted in the interstices" of the legal system, and to that extent is inseparable from it.
Thus it has been said that law in action is not a mere system of rules, but involves the use of certain principles, such as that of the equitable and the good (aequum et bonum). By the skilled application of these principles to legal rules the judicial process distills a moral content out of the legal order, though it is admitted that this does not permit the rules themselves to be rejected on the general found of their immorality.
Another approach would go much further and confer upon the legal process an inherent power to reject immoral rules as essentially non-legal; this seems to resemble the classical natural law mode of thought, but it is urged, the difference is that according to the present doctrine it is a matter of the internal structure of the legal system, which treats immoral rules as inadmissible rather than as being annulled by an external law of nature.
If value judgments such as moral factors, form an inevitable feature of the climate of legal development, as in generally admitted, it is difficult to see the justification for this exclusive attitude.
Value judgment which enter into law will require consideration of what would be a just rule or decision, even though not objective in the sense of being based on absolute truth, may, nevertheless, be relatively true, in the sense of corresponding to the existing moral standards of the community.
Whether it is convenient or not to define law without reference to subjective factors, when we come to observe the phenomena with which law is concerned and to analyze the meaning and use of legal rules in relation to such phenomena, it will be found impossible to disregard the role of value judgments in legal activity, and we cannot exercise this functional role by stigmatizing such judgments as merely subjective or unscientific.
The Problem about the Nature of Law J.Raz (1982)
The theory of knowledge attempts to clarify the nature of knowledge, the philosophy of logic examines the definition of logic, moral philosophy reflects on the nature and boundaries of morality and so on.
One finds philosophers who took the enquiry concerning the nature of law to be an attempt to define the meaning of the word "law". Traditionally those who adopted the linguistic approach concentrated on the word "law". However, it encountered the overwhelming problem that that word is used in a multiplicity of non-legal contexts. We have laws of nature and scientific laws, laws of God and thought, of logic and of language, etc. Clearly the explanation of "law" has to account for its use in all these contexts and equally clearly any explanation which is so wide and general can be of very little use to legal philosophers.
Only one assumption can the explanation of "law" hope to provide the answer to the legal philosopher's inquiry into the nature of law. That assumption is that the use of "law" in all its contexts but one is analogical or metaphorical or in some other way parasitical on its core meaning as displayed in its use in one type of context and that that core meaning is the one the legal philosopher has at the centre of his enquiry. Unfortunately, the assumption is mistaken. Its implausibility is best seen by examining the most thorough and systemic attempt to provide an analysis of "law" based on this assumption, that proposed by John Austin in The Province of Jurisprudence Determined.
The Lawyers' Perspective
Many legal philosophers start from an unstated basic intuition:
"The law has to do with those considerations which it is appropriate for the courts to rely upon in justifying their decisions."
Most theorists tend to be by education and profession lawyers and their audience often consists primarily of law students. Quite naturally and imperceptibly they adopted the lawyers' perspective on the law. Lawyers' activities are dominated by litigation in court, actual or potential. They not only conduct litigation in the courts. They draft documents, conclude legal transactions, advise clients, etc., always with an eye to the likely outcome of possible litigation in which the validity of the document or transaction or the legality of the client's action may be called into question. From the lawyer's point of view the law does indeed consist of nothing but considerations appropriate for courts to rely upon.
Hans Kelsen says he follows a combination of the linguistic approach and the institutional approach: "Any attempt to define a concept in question. In defining the concept of law we must begin by examining the following questions:
Do the social phenomena generally called law present a common characteristic distinguishing them from other social phenomena of a similar kind?
The clue to the methodological approach Kelsen was in fact pursuing is in his insistence that legal theory must be a pure theory. Kelsen regarded it as doubly pure. It is pure of all moral argument and it is pure of all sociological facts. Kelsen indicates his belief that the analysis of legal concepts and the determination of the content of any legal system depends in no way at all on the effects the law has on the society or the economy, nor does it involve examination of people's motivation in obeying the law or in breaking it.
For Kelsen, it is self-evident that legal theory is free of all moral considerations. The task of legal theory is clearly to study law. If law is such that it cannot be studied scientifically then surely the conclusion that if the law does involve moral considerations and therefore cannot be studied scientifically, then legal theory will study only those aspects of the law which can be studied scientifically.
Since Kelsen has no good reason to insist that legal theory should be free from moral consideration, he has no good reason to delimit the law in the way he does.
The international Approach
It is the lawyer's perspective which delivers the verdict. Yet there is something inherently implausible in adopting the lawyer's perspective as one fundamental methodological stance. There is no doubting the importance of the legal profession and of the judicial system in society. It is however, unreasonable to study such institutions exclusively from the lawyer's perspective.
Institutional approach seems much superior to its rivals. The institutional approach strives to present an analysis of a central political institution should be accepted as the analysis of law. From the institutional point of view, the basic intuition is the starting point for further critical reflection. It is entirely plausible to regard the notion of law as bound up with that of a judicial system but what are the essential characteristics of a court and why are they important to the political organization of society? Three features characterize courts of law:
1. They deal with disputes with the aim of resolving them.
2. They issue authoritative rulings which decides these disputes.
3. In their activities they are bound to be guided, at least partly, by positivist authoritative consideration.
At the highest level of philosophical abstraction the doctrine of the nature of law can and should be concerned with explaining law within the wider context of social and political institutions. It shows how the inclination to identify the theory of law with a theory of adjudication and legal considerations with all those appropriate for courts is based on a short sighted doctrine overlooking the connection of law with the distinction between executive and deliberative conclusion. Clearly, a theory of adjudication is a moral theory. It concerns all the considerations affecting reasoning in the courts, both legal and non-legal.
When the doctrine of the nature of law is identified with a theory of adjudication it becomes itself a moral theory. The doctrine of the nature of law yields a test for identifying law the use of which requires no resort to moral or any other evaluative argument. But it does not follow that one can defend the doctrine of the nature of law itself without using evaluative arguments. Its justification is tied to an evaluative judgment about the relative importance of various features of social organizations and these reflect our moral and intellectual interest and concerns.
Law and Morality
In the modern world, morality and law are almost universally held to be unrelated fields and, where the term "legal ethics" is used, it is taken to refer to the professional honesty of lawyers or judges, but has nothing to do with the possible "rightness" or "wrongness" of particular laws themselves.
This is a consequence of the loss of the sense of any "truth" about man, and of the banishment of the idea of the natural law. It undermines any sense of true human rights, leaves the individual defenseless against unjust laws, and opens the way to different forms of totalitarianism. This should be easy enough to see for a person open to the truth; but many people's minds have set into superficial ways of thinking, and they will not react unless they have been led on, step by step, to deeper reflection and awareness.
Relationship between Law and Morality or Ethics
Law is an enactment made by the state. It is backed by physical coercion. Its breach is punishable by the courts. It represents the will of the state and realizes its purpose.
Laws reflect the political, social and economic relationships in the society. It determines rights and duties of the citizens towards one another and towards the state.
It is through law that the government fulfils its promises to the people. It reflects the sociological need of society.
Law and morality are intimately related to each other. Laws are generally based on the moral principles of society. Both regulate the conduct of the individual in society.
They influence each other to a great extent. Laws, to be effective, must represent the moral ideas of the people. But good laws sometimes serve to rouse the moral conscience of the people and create and maintain such conditions as may encourage the growth of morality.
Laws regarding prohibition and spread of primary education are examples of this nature.Morality cannot, as a matter of fact, be divorced from politics. The ultimate end of a state is the promotion of general welfare and moral perfection of man.
It is the duty of the state to formulate such laws as will elevate the moral standard of the people. The laws of a state thus conform to the prevailing standard of morality. Earlier writers on Political Science never made any distinction between law and morality.
Plato's Republic is as good a treatise on politics as on ethics. In ancient India, the term Dharma connoted both law and morality. Law, it is pointed out, is not merely the command of the sovereign, it represents the idea of right or wrong based on the prevalent morality of the people.
Moreover, obedience to law depends upon the active support of the moral sentiments of the people. Laws which are not supported by the moral conscience of the people are liable to become dead letters.
For example laws regarding Prohibition in India have not succeeded on account of the fact that full moral conscience of the people has not been aroused in favor of such laws.
As Green put it, "In attempting to enforce an unpopular law, a government may be doing more harm than good by creating and spreading the habit of disobedience to law. The total cost of such an attempt may well be greater than the social gain."
Although law and morality arc interdependent yet they differ from each other in their content, definiteness and sanction.
Some points of distinction between law and morality may be brought out as follows:
The Oxford English Dictionary defines the law as:
‘the body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects.’
That this should be regarded as the definition of law for the English language is evidence of the influence legal positivism has upon the philosophy of law in our culture. The central themes of positivism are the contentions: firstly, that the existence of law rests upon identifiable social facts and, secondly, that it is necessary to maintain a conceptual distinction between law and morality. In this essay I will examine the positivist assertion that law is identifiable independently of morality, with a particular focus on the theory of H.L.A Hart.
1. Law regulates and controls the external human conduct. It is not concerned with inner motives. A person may be having an evil intention in his or her mind but law does not care for it.
Law will move into action only when this evil intention is translated into action and some harm is actually done to another person.
2. Law is universal in a particular society. All the individuals are equally subjected to it. It does not change from man to man.
3. Political laws are precise and definite as there is a regular organ in every state for the formulation of laws.
4. Law is framed and enforced by a determinate political authority. It enjoys the sanction of the state. Disobedience of law is generally followed by physical punishment.
The fear of punishment acts as a deterrent to the breach of political law.
5. Law falls within the purview of a subject known as Jurisprudence.
1. Morality regulates and controls both the inner motives and the external actions. It is concerned with the whole life of man.
The province of law is thus limited as compared with that of morality because law is simply concerned with external actions and docs not take into its fold the inner motives.
Morality condemns a person if he or she has some evil intentions but laws are not applicable unless these intentions are manifested externally.
2. Morality is variable. It changes from man to man and from age to age. Every man has his own moral principles.
3. Moral laws lack precision and definiteness as there is no authority to make and enforce them.
4. Morality is neither framed nor enforced by any political authority. It does not enjoy the support of the state. Breach of moral principles is not accompanied by any physical punishment.
The only check against the breach of morality is social condemnation or individual conscience. 'Moral actions are a matter of choice of inner conscience of the individual, laws are a matter of compulsion'.
5. Morality is studied under a separate branch of knowledge known as Ethics.
We may conclude the discussion in the words of Gilchrist, "The individual moral life manifests itself in manifold ways. The state is the supreme condition of the individual moral life, for without the state no moral life is possible.
The state, therefore, regulates other organizations in the common interest. The state, however, has a direct function in relation to morality."
Points to Remember
Laws may be defined as external rules of human conduct backed by the sovereign political authority. Law and morality are intimately related to each other.
Laws are generally based on the moral principles of a particular society. Some points of distinction may be brought out as follows:
(a) Laws regulate external human conduct whereas morality mainly regulates internal conduct.
(b) Laws are universal; morality is variable.
(c) Laws are definite and precise while morality is variable.
(d) Laws are upheld by the coercive power of the state; morality simply enjoys the support of public opinion or individual conscience.
(e) Laws are studied under Jurisprudence but morality is studied under Ethics.
Law and freedom
Both law and morality imply human freedom. Clearly, without freedom one cannot speak of morality. But the same holds for law, for if it were automatically and not freely obeyed, men would be mere robots. Law is not a simple indication of what happens, such as the law of physics; it is an admonition to free persons about what they are required to do if they wish to live freely and responsibly in society; and it normally carries with it a sanction or punishment to be imposed on whoever is shown to have acted against given norms of conduct. Just law, properly understood, appeals to freedom.
Nevertheless one of the most generalized liberal ideas is that law is by nature the enemy of freedom. Servais Pinckaers holds that Catholic moralists have gone through many centuries under the influence of this mentality which has led, by reaction, to the anti-law approach of much of contemporary moral theology. In this view, law and freedom were seen as "two opposed poles, law having the effect of limitation and imposing itself on freedom with the force of obligation. Freedom and law faced each other as two proprietors in dispute over the field of human actions. The moralists commonly said, "Law governs this act, freedom governs that one..." The moralists were traditionally the representatives of the moral law, and their mission was to show to conscience how to apply it in a particular situation, in a "case of conscience". Today we witness a strong tendency to invert the roles; the moralists now regard themselves as defenders of freedom and of personal conscience" [as against the law].
Law and justice
Law cannot attempt to regulate the purely interior sphere of personal conduct; morality can. Human or civil law is connected with external actions, precisely insofar and because they impinge on the rights or lawful actions of others. Hence the necessary connection of law with justice. For the regulation of interpersonal relations must work from the basic principle of justice: "to each his due". Hence arises the fundamental question of what is due to each one, and from this the further question of human rights.
To each his due. Something is due to each. This is the sense of equality before the law. "The possibility of giving his or her due not only to a relative, friend, citizen or fellow believer, but also to every human being simply because he is a person, simply because justice requires it, is the honor of law and of jurists. If there is an expression of the unity of the human race and of equality between all human beings, this expression is rightly given by the law, which can exclude no one from its horizon under pain of altering its specific identity".
Even for those who see law and freedom in mutual opposition, the whole concept of law is essentially connected with that of justice. The ancient principle lex iniusta non est lex (an unjust law is not a law), is at the basis of so many modern protests in the name of freedom. "This law is discriminatory, therefore it is not just". But justice is a moral concept; so these protests bear out the intrinsic connection between law and morality,
"There is another crucial link between the virtues and law, for knowing how to apply the law is itself possible only for someone who possesses the virtue of justice".
'The law must respond to "living situations"...' Very good, but not in the sense that it must take the situation as its norm. Justice must remain the norm, and sometimes the law must regain ground for justice.
Influence of Morals on Law
Law and Morals act and react upon and mould each other. In the name of ‘justice’, ‘equity’, ‘good faith’, and ‘conscience’ morals have in-filtered into the fabrics of law. In judicial law making, in the interpretation of legal precepts, in exercising judicial discretion (as in awarding punishment) moral considerations play a very important role. Morals work as a restraint upon the power of the legislature because the legislature cannot venture to make a law which is completely against the morals of the society. Secondly, all human conduct and social relations cannot be regulated and governed by law alone. A considerable number of them are regulated by morals. A number of action and relations in the life of the community go on very smoothly without any intervention by law. Their observance is secured by morals. So far as the legal rules are concerned, it is not the legal sanction alone that ensure their obedience but morals also help in it. Thus, morals perfect the law. ‘In marriage, so long as love persist, there is little need of law to rule the relations of the husband and wife – but the solicitor comes in through the door, as love flies out of the window.’
Growing Importance of Morals
Now, sociological approach has got its impact upon the modern age. This approach is more concerned with the ends that law has to pursue. Thus, recognized values, or, in other words, morals (of course the morals of the modern age) have become a very important subject of study for good law making. On international law also morals are exercising a great influence. The brutalities and inhuman acts in World Wars made the people to turn back to morals and efforts are being made to establish standards and values which the nations must follow. Perhaps there is no other so forceful ground to justify the Nuremberg Trials as morals. If the law is to remain closer to the life of the people and effective, it must not ignore morals.
Generally, legal rules are composite and are derived from heterogeneous source. In India, if we examine all the legal perspective, we shall find that some of them have come from personal laws and local custom, a good number of them are based on foreign rules and principles (mainly English), some are based on the logic or political ideology and so on. Secondly, ‘public opinion’ which greatly influences law is made up of a number of things – political ideas, economic theory, ethical philosophy etc. These directly and indirectly influence law. Therefore, when so many elements work in shaping the legal precepts, the matter cannot be put in such a simple way as the ‘relation between law and morals’, because a number of factors join hands in influencing law, and morals is only one of them. However, some observations can be made about the relationship between law and morals.
# http://www.JStore.com/law_and_morality.php accessed on Thursday, 15th October, 2015 at 12:15 pm
# Trpathi, B.N. Mani, Jurisprudence (Legal Theories), Allahbad law Agency, 18th Edition (2008), p 140
# http://theoryofjurisprudence.blogspot.in/2006/08/moral-as-part-of-law.html accessed on Friday 16th October, 2015 at 13:30 pm
# http://Law and Morality _ www.cormacburke.or.ke.html accessed at 16th October, 2015, at 12:30 pm
# http://Relation between Law and Morality or Ethics.html accessed on 15th October, 2015 at 14:00 pm
# Servais Pinckaers: Pour une Lecture de Veritatis Splendor, Paris, 19
# 95, pp. 41-42.
# Pope John Paul II, Address to the International Union of Catholic Jurists, Nov. 24, 2000.
# Alasdair MacIntyre, After Virtue, 1984 (2nd Edition), p. 152.
# Supranote 3 at p 146
# Paton, A Text Book of Jurisprudence
# Supranote 10 at p 147