Discuss the relation between Law and Morals. Is there law in morals and morals in law


Q. 16 (b). Discuss the relation between Law and Morals. Is there law in morals and morals in law ?

Ans. Relation between Law and Morals :—A study of various systems will make it crystal clear that law and morals have had a long union with occasional desecration and judicial separation bui never completely divorced. There are indeed many different types of relation between law and morals and there is nothing that can he profitably singled out for study as the relation between them. Stammfer firmly believed that jurisprudence depended much upon moral in deals, as just law has need of ethical doctrine for its complete realisation. There is, thus no difference, and ifany, it is only the difference of manner in which the desire for justice presents itself. Allen, C.K., who has gone a step further, observed that “Our Judges have always kept their fingers delicately but firmly put upon the pulse of the accepted morality of the day” Lord Manfield, too has maintained that “the law of England prohibits everything which is contra bonos mores. It is, without any serious doubt and dispute, true that the development of law, at all times and places, has in fact been profoundly influenced both by the conventional morality and ideals of particular social groups, and also. by forms of enlightened moral criticism of those people, whose moral horizon has transcended the morality currently accepted. Professor Hurl, thus, holds a clear cut view that a legal system must exhibit some specific conformity with.morality or justice, or must rest upon a widely diffused conviction that there is moral obligation to obey it.

Though many jurists seem to have excluded altogether all extraneous matters including morals as well from the purview of law, there is, however a certain drift in the minds of the modern, thinkers and jurists who regard law and morals as closely connected. The sociological out-look of law is indirectly in tune with morals. Though they have very often made a distinction between law and morals, and considered the former as the proper subject-matter of study, in tracing the origin, development, function, and ends of law, they have certainly made a study of the forces that inspired it. According to the sociological approach, law has always a purpose. Law is a means to an end. The purpose of law is the welfare of society. According to the jurists of the sociological school, the immediate end of law is to secure social interests i.e. to secure harmony of claims or demands. According to Roscoe Pound, the conflicting interests in the society should be weighed and evaluated and the interests which can bring greater benefit with the least sacrifice should be recognized and protected. Thus all this becomes a question of choice. In making this choice, and in weighing or evaluating interest, whether in legislation or judicial decision or juristic writing, whether we do it by law making or in the application of law, we must turn to ethics for principles. Morals is an evaluation of interests ; Law is or at least seeks to be a delimitation in accordance therewith. [Dr. B. N. M. Tripathi—Jurisprudence p.90.

Professor Lon L Fuller, who has also advocated the cause of necessary connection between law and morality, but unlike earlier natural-ists, does not argue that the rules of a legal system must conform to any substantive requirements of morality; or to any other external standard, rather, he stipulates the need for rules of law to comply with internal morality : This internal morality of law is not something added to or imposed on, the power of law, but is an essential condition to that power itself. Tht internal morality of law, which forms the entire core of Fuller’s thesis, appears to be completely ignored by Professor Hart. He does not make a brief mention of “justice in the administration of the law”‘, which consists in the like treatment of like cases by whatever elevated or per-verted standards the word ‘like’ may be defined. But he sharply dis-misses this aspect of law as having no peculiar relevance to his main enterprise. Professor Fuller who is cautious enough over Hart’s mistaken belief remarks that it is his neglect to analyse the demand of a morality of order that leads him throughout his essay to treat law a datum projecting itself into human experience and not as an object of human striving.

According to Fuller, morality of aspiration exhorts mankind to strive for ideals to fulfil their potentialities in a platonic way, He lists certain eight ideals or formal virtues to which a legal system should strive. These principles of legality are not basic conditions which every system necessarily fulfils, but constant polestars guiding its progress. The greater its success, the more fully legal such system would be.

The most obvious distinction between legal rules and moral rules as drawn by Salmond is that the legal rules admit of principle of alteration by legislation, whereas moral rules, on the other hand, do not even in principle admit of change by legislation, To change moral rules by legis-lation is not only improbable, it is unimaginable.

The most pertinent attempt to convey the essential difference between law and morals is the theory which maintains that whereas legal rules do require external conduct and are indifferent to the motives, intentions or other internal accomplishments of conduct, morals, on the other hand, do not require any specific external actions but only a good will or proper intentions or motive. Thus, if a person does something forbidden by morals rules or fails to do what they require the fact that he did so unintentionally and in spite of every care is an excuse from moral blame, whereas a legal system or custom may have rules of strict liability under which those who have broken the rules unintentionally and without fault may be liable to punishment.

Though law and morality are not the same and many things which may be immoral which are not necessarily illegal, yet the absolute separation of law from morals would be a fatal consequence. It would be wrong to regard law and morals entirely unrelated. Radbruch, a German thinker, has remarked that there are certain fundamental principles of humanitarian morality which are part of the very concept of legality and that no positive enactment or statute, however, clearly it conformed with the formal criteria of validity of a given legal system, could be valid if it opposed basic principles of morality. Accordingly, every lawyer and judge should denounce statutes that transgressed the fundamental principles not as merely immoral or wrong but as having no legal character at all, and enactment which on this ground lack quality of law should not be taken into consideration in working out the legal position of any, given individual in particular circumstances. The positivist slogan ‘law is law 1 or the distinction between law and morals is very well, but that does not conclude the question law is not morality. The old religious morality has been broadened by many laws ensuring religious freedom in modern jurisprudence and by encouraging and enforcing tolerance and under-standing, as moral virtues in recognition of many cultural rights of mi-norities. Family laws of modern jurisprudence have also improved and reformed many areas of superstition which passed as morality in older times.

The recognised morality is as necessary to social existence as a necessary Government Professor Hart, agreeing with Devlin, admits that some shared morality is essential to society, what he calls universal.values. If any society is to survive, if any legal system is to function then there must be rules prohibiting for example, murder. Hart has further argued that rules essential for a particular society might also be enforced. According to Hart, “The law of every modern State shows at the accepted social morality and wider moral ideals”. These inffuences enter into law either abruptly and avowedly through legislation, or silently and piece-meal through the judicial process. No positivist could deny that these are facts or that the stability of the legal systems depends in part upon such types of correspondence with morals. If this is what is meant by the necessary connexion of law and morals, its existence should be conceled. [Hart H. L. A. The concept of Law [1970] Pp. 199-200].