Notes and Articles for Law students

User Tools

Site Tools


The perfection of law requires intermingling and intermixing of law and morality

There is a common logical fallacy that the crime statistics reflect in some way the morality of the society. The crime statistics reflect first to which extent the human behaviour may be considered to be criminal. We can legalize prostitution or the retail sales of alcohol. We can change the definition of the crimes; a broader definition will increase the statistics at least in the first period after the amendment. A narrower definition and a harder burden of proof for the prosecution will decrease the statistics, but attention not the criminality. The most fallacious part of the statement is to pass by the fact that an increase in the statistics can often reflect a more effective enforcement. The police and the other authorities have invested lots of public money in a betterment of the enforcement. This has nothing to do with the morality of the people living in that jurisdiction. One can define taxation as a very moral activity, it is after all about sharing and giving to the people in need, but also as an immoral activity because a person is dispossessed by his/he property, property which has been obtained completely in a legal manner. Some crimes appear to be absolutely horrifying and undoubtedly immoral. As an outsider or as a second hand listener, one person will never know the whole story. Therefore the biblical story is still wise: Don't throw any stones on nobody! You might be less innocent than that person.

The socially constructed truth is always relative. It serves some common purposes. We are only told the 'truth'. If the truths being told fit with our frame of values, they are going to be accepted as reality. If they come in conflict with this frame of values, we will reject them and start to search about the 'real' truth and so on. It sounds strange. In order to provide justice and be impartial, one has to forget about his own cultural bias or moral bias and judge as to the law and not as to the morality. The values of the society cannot be alienated from the law. The law comes as a reflection of these values. In the moment of becoming LAW, it becomes the main point of reference for the judge. The relation between law and moral values is a very complex one. What is the role of moral for the law maker or for the law enforcer? Do moral have any significance for a judge? Law is supposed to reflect morality and ethicality in an ideal situation. It is pretty unlikely to come up with valid and reliable operational definitions for moral codes which turn out to be volatile and even biased or miscomprehended by human illogicality and cognitive ease. Law is an instrument of policy. The regulatory policy is formulated by the state with a view to the interests of various stakeholders. Law is moral to the extent those interests are moral; ergo, often not. The job of any judge is to uphold the law of the land in the court of law. For a judge their might be a conflict between what he/she may believe and what the law says. The judge may believe legalizing prositution is immoral. In any relevant legal case, this should not in any way interfere with him passing a sentence.

Legal rules are composite. They are derived from heterogeneous sources. In India, if we examine all the legal precepts, we shall find that some of them have come from personal laws and local customs. A good number of them are based on foreign rules and principles “mainly English”, some are based on some logic or political ideology and so on. In the early stages of the society there was no distinction between law and morals.

Hindu law

The prime sources are the Vedas and the smritis. There is no distinction between law and morals in the beginning. Later on, Mimansa laid down certain principles to distinguish obligatory from recommendatory injunctions. By the time the commentaries were written the distinction was clearly established in theory. The commentators pointed out the distinction and in many cases dropped those rules which were based purely on morals. The doctrine of “factum valet” was recognized. It means that an act which is in contravention of some moral injunction, if accomplished in fact, should be considered valid. This rule does not apply to legal injunctions. In modern times, the Privy Council in its decisions always made a distinction between legal and moral injunctions. Now there is no longer any confusion between law and morals and when the law is gradually being codified, there are little chances of such confusion.

Western philosophy

The Greeks in the name of the doctrine of “natural rights” formulated a theoretical moral foundation of law. The Roman jurists in the name of “natural law” recognized certain moral principles as the basis of law. In the middle ages the church became dominant in Europe. The “natural law” was given a theological basis. Christian morals were considered as the basis of law. When the yoke of the church was thrown off, it was asserted that law and morals are distinct and separate. Law derives its authority from the state and not from the morals. Morals have their source in the religion or conscience. In the 17th and 18lh centuries “natural law” theories became very popular. They had a moral foundation. Law again came to be linked with morals. In the 19th century AUSTIN propounded his theory that the law has nothing to do with the morals. He defined law as the command of the sovereign. It was “command” alone which is subject-matter of jurisprudence. Morals are not a subject-matter of study for jurisprudence. Later jurists supported the view of AUSTIN.

In the 20th century KELSEN propounded that only the legal norms are the subject-matter of jurisprudence. He excluded all other extraneous things including the morals from the study of law.

In modern times, there is change in the trend. The sociological approach to law studies morals also. They always make a distinction between law and morals and consider the former as the proper subject-matter of study, in tracing the origin, development, function and ends of law. They make a study of the forces which influence it. Their field of study extends to the various social sciences including morals.

The legal positivism of AUSTIN which based law solely on the coercive power of the state and SAVIGNY’s over-emphasis on past values and traditions had virtually brought the development of legal reforms to a complete halt. The jurists from Germany and France looked for a legal philosophy which could prevent stagnation of law and create conditions favourable to its steady growth so as to meet the complexities of the contemporary society. It was realized that law, in order to command respect from the society, must have an element of ethical value. This resulted into emergence of a new school of thought which has been called as the ethical/ moral or philosophical school of jurisprudence.

Legal philosophy must be based on ethical values so as to motivate people for an upright living. The science of ethics deals with the principles of morality. It moulds man’s conduct enabling him to distinguish between right and wrong. He people would respect the rights of order in order to maintain social harmony. The purpose of law is to maintain justice and order in society. The legal restrictions can be justified only if they promote the freedom of individuals in society. The ethical view of jurisprudence expounds the principle of law as it is and it ought to be. It is neither concerned with the historical past nor with the analytical present. It concerns with the future of law as it “ought to be. The main features of the ethical jurisprudence may briefly be stated as follow:

  1. The concept of justice has a philosophical or ethical content and law and justice are closely inter-related concepts. Law is a means to attain the ends of justice. The law is only an instrument towards the fulfilment of the objective of justice.
  2. The ethical view of jurisprudence concerns itself with the manner in which the law fulfils its purpose of attainment of justice.
  3. The study of difference between the spheres of law and justice.
  4. The ethical significance of legal conceptions.

The ethical or philosophical view considers law as the means by which individual’s will is harmonized with the general will of the community. The proximate object of jurisprudence is to secure liberty to the individual for the attainment of human perfection. The liberty is one of the essential pre-requisites for the perfection of the human personality. The philosophical jurisprudence became the common ground of moral and legal philosophy, and of ethics and jurisprudence. HUGO GROTIUS, KANT, HEGEL AND SEBELLIGN are considered as the main exponents of the ethical or philosophical jurisprudence, The public opinion greatly influences law. Law is made up of a number of things - political ideas, economic theory, ethical philosophy etc. These directly and indirectly influence law. When so many elements work in shaping the legal precepts, the matter cannot be put in a simple way. A number of factors join hands in influencing law and morals is only one of them.

Influence of Morals on Law

Law and moral act and react upon and mould each other. In the name of justice, equity, good faith and conscience, morals have infiltrated into the fabric of law. Moral considerations play an important part while making law, interpreting law and exercising judicial discretion. Morals act as a restraint upon the power of the legislature. No legislature will dare to make a law which is opposed to the moral of society. All human conduct and social relations cannot be regulated and governed by law alone. Many relations are left to be regulated by morals and law does not interfere with them.

Morals perfect the law: PATON writes: “in marriage, so long as love persists, 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. The sociological approach is very much concerned with the ends to be pursued by law. The result is that morals have become a very important subject of study for good law-making. Morals also exercise a great influence on international law. The brutalities committed during the world wars have forced the people to turn back to morals. Efforts are being made to establish standards and values which must be followed by nations. If law is to remain closer to the life of the people, it cannot ignore morals. About the influence of morals on law, HART says that the law of every modern state shows at a thousand points the influence of both the accepted social morality and wider moral ideals. These influences enter into law either abruptly and avowedly through legislation, or silently and piecemeal through the judicial process. In some systems, as in the United States, the ultimate criteria of legal validity explicitly incorporate principles of justice or substantive moral values; in other systems as in England where there are no formal restrictions on the competency of the supreme legislature, its legislation may yet no less scrupulously conform to justice or morality. Law mirrors morality which are myriad. No positivist could deny that these are facts or that the stability of legal systems depends in part upon such types of correspondence with morals. If this is what is meant by the necessary connection of law and morals, its existence should be conceded. Now, sociological approach has got its impact upon the modern age. This approach is more concerned with the ends that law has to pursue. Morals 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. If the law is to remain closer to the life of the people and effective, it must not ignore morals.

Concept of Law

Every society is a unity of order determined by its last end and goal. Different societies are classified according to their different ends. Societies are necessitated by the dignities and needs of the person: While society is a necessity, the form of the polity is left to man's free determination. There is an essential relationship between political society and man's nature and purpose. The purpose is to maintain the order of the community. Laws are essential in any society because they are necessary means to attain the end of the State. The goal to which all laws aim is the common good. In most societies, the goal is that of affording the individual an opportunity to live a full life. The immediate common good of a state is peace. The ultimate common good of the state is the life of reason for the whole community. There must be the assurance to give the opportunity to follow the law of reason for individual perfection. The term “law” is complex. It is subject to many distinctions.

All of the characteristics of law are contained in the classic definition. Law is an ordination of reason for the common good by him who has care of the community and promulgated. The types of law differ in their causality. The term “law” is predicated analogously and not univocally of the types of law, eternal, natural, divine and positive. The natural law, in the order of the common good, prescribes the end of justice and the jus gentium' which prescribes the means of justice-but both constitute the end and means in a universal sense and hence there exists a need for a norm or law on the particular and practical order of concrete acts: the positive law. The positive law declares and supplements natural law by more definite determinations and its chief function is to implement natural law in different civilizations and cultures. The positive law is subject to error because it treats the contingent rather than the necessary.

Concept of morality

The idea of value (good or end) is the crux of any moral system. The value of anything rests primarily in its perfection and in its act, i.e., in the full development of its peculiar nature and the attainment of its own peculiar perfection. The concept of value is the beginning of morality, a thing takes on the appearance of an end because it is good and the end is the form which a thing assumes when it enters into relation with an appetite. The reason why an object becomes the object of an appetite lies in its goodness and value. Every appetite is directed towards the perfection of the subject. The moral act is a combination of the rational and free act and it is intended goods and values that result from this activity. The objective of the moral act is made up of three elements-the object, the end and the circumstance. The rational human nature is the norm of morality. Morality is the transformation of a known order of values. Morality is nothing more than conformity with the rule which regulates human life: namely, the rule of reason. The essence of morality is man's approach to his goal; man's particular goal is the perfection of his spiritual and moral nature and his ultimate goal is union with God.

The relationship between law and morality can be stated in the following manner:

  1. Law is related to morality in the setting forth of those virtues that are related to the common good. It prohibits only the grosser failings of mankind which threaten the very survival of society. It commands those virtues which can be ordained by human means to the common good.
  2. Law is related to morality by the moral obligation imposed. The obligation flows from the essential notion of law as an effective dictate of practical reason. The positive human laws' obligation is not in that same manner as morality's obligation.
  3. Law is related to morality inasmuch as law is subject to and cannot contradict moral principles, i.e., natural moral law.
  4. Law is related to morality inasmuch as both stem and are directed by the same source. The source is practical reason or prudence. A keener insight into this particular relationship can be ascertained by determining the nature of politics. Politics is a human work of experience and prudence.
  5. Law is related to morality inasmuch as justice is a moral concept which is meaningless outside the area of morality. Essentially, justice consists in the creation of equality.

About the Author

© C.R Nanda Academy is an initiative by Adv. Chittaranjan Nanda to spread legal awareness among Indian Citizens.

Navigation: Home»Jurisprudence