Amity Law School

Project
What is the place of
Morality in Rule of Law?
(Jurisprudence)
Introduction

Law's relation to morality has been debated ever since Jurisprudence

itself came to be, and it seems as though it is destined to remain as one of
the great philosophical debates.
Law is essentially a set of rules and principles created and enforced by
the state whereas morals are a set of beliefs, values and principles and
behaviour standards which are enforced and created by society. Legal and
moral rules can be isolated with the former being created by the
legislative institution of parliament; whereas the latter have evolved with
and through society and are the standards which society in general
accepts and promotes.
Some laws mirror the majority of society’s moral view, for example, that
murder is wrong but the introduction of same sex marriages is seen by
some people as morally wrong and society is divided.
Law is a set of rules and boundaries that are established by authorities
which must be obeyed, otherwise, a legal sanction might be given. While
Morals are normally just beliefs, values and principles that are set by
society or part of a society, determining what is right and wrong.
Laws can be instantly made and instantly cancelled. It can exist one
minute and the next it does not, for example when an act is repealed.
Morals form slowly and change slowly as society's attitudes change.
There is usually a slow transitional period, for example society's attitude
to premarital sex. Breach of law leads to some form of punishment or
remedy enforced by the state. Breach of morals lead to some form of
social condemnation but the state is not involved.
Society's attitude to law is irrelevant. A law exists even if the vast
majority disobey it. Morals are rules that reflect society's values and
beliefs. Therefore these values and beliefs are vital for the existence of
morals.

Schools of Jurisprudence related to Law and Morality

To understand the concept of Law and Morality, we will first have to

understand the two major schools of Jurisprudence that deal with these
ideas.

Natural law (jus naturale) is a philosophy that certain rights are inherent
by virtue of human nature endowed by nature, God, or a transcendent
source, and can be understood universally through human reason.
Historically, natural law refers to the use of reason to analyze human
nature to deduce binding rules of moral behavior from nature's or God's
creation of reality and mankind. The law of nature, as determined by
nature, is universal. Natural law first appeared in ancient Greek
philosophy. It is often contrasted with the human-made laws (positive
law) of a given state, political entity or society. In legal theory, the
interpretation of a human-made law requires some reference to natural
law. On this understanding of natural law, natural law can be invoked to
criticize judicial decisions about what the law says, but not to criticize the
best interpretation of the law itself.
It symbolizes Physical Law of Nature based on moral ideals which has
universal applicability at all places and terms. It has often been used
either to defend a change or to maintain status quo according to needs and
requirement of the time. The concepts of ‘Rule of Law’ in England and
India and ‘due process’ in USA are essentially based on Natural Law.
Natural Law is eternal and unalterable, as having existed from the
commencement of the world, uncreated and immutable. It is not made by
man; it is only discovered by him. It is not enforced by any external
agency. It is not promulgated by legislation; it is an outcome of preaching
of philosophers, prophets, saints etc. and thus in a sense, it is a higher
form of law. Natural Law has no formal written Code. Also there is
neither precise penalty for its violation nor any specific reward for
abiding by its rules. It has an eternal lasting value which is immutable.

Positive Law (jus positum) are human-made laws that oblige or specify
an action. It also describes the establishment of specific rights for an
individual or group. Etymologically, the name derives from the verb to
posit.
The concept of positive law is distinct from "natural law", which
comprises inherent rights, conferred not by act of legislation but by "God,
nature or reason." Positive law is also described as the law that applies at
a certain time (present or past) and at a certain place, consisting of
statutory law, and case law as far as it is binding. More specifically,
positive law may be characterized as "law actually and specifically
enacted or adopted by proper authority for the government of an
organized jural society."
The purpose of analytical jurisprudence is to analyse the first principles
of law without reference either to their historical origin or development or
their validity. Another purpose is to gain an accurate and intimate
understanding of the fundamental working concepts of all legal
reasoning. The positive law takes law as the command of the sovereign. It
puts emphasis on legislation as the source of law. It regards law as a
closed system of pure facts from which all norms and values are
excluded.
Law and morality have always been at loggerheads with each other. The
positivists led by Bentham and Austin deliberately keep justice and
morality out of the purview of legal system. Their formalistic attitude is
concerned with law as it is and not law as it ought to be. They emphasize
law from the point of source and implementation. So, the natural law
system depends upon the standards and yardsticks of morality to
formulate any law, whereas the positivist system of law depends upon the
conscious and deliberate attempt of law making.

Comparing Law and Morality

Law is a continuously evolving norm. It is dynamic and is never at any

point of time static. Law has to change from time to time as according to
the ever changing demands of society. Law doesn't exist for its own state.
It has to achieve certain objectives, which may be short term or long
term. Law aims to create an order in society (in all units of society). Law
tries to create a working environment which is equally just to all sections
of society.
On the other hand, there is the vague concept of morality which is a sort
of a norm or a part of normative system. Morals are actually certain
yardstick standards in our society which work as prescriptions to human
behavior. The starting of preaching of morals start from the very basic
unit of our society i.e. family.
Law or morality both are normative systems of our society as both are
normative and institutionalized by nature. The only difference between
law and morality is that law is coercive by nature but morality is not. Law
is enforced by coercion and its constant application on a society leads to
the internalization of law in human soul. Initially, law gives only an
external behavior or an overt effect, but with the pace of time the forceful
obedience of laws takes the shape of an internalized realization of
habitual obedience.

Aspects of Law not based on Morality

Some laws are managerial or administrative in nature that they institute

behavior for procedural purposes that could equally well, from a moral or
socially useful point of view, have been written in a different, or even
opposite way. These laws are not based on morality, in terms of their
specifics. They are moral because they are a way of promoting social
benefits of a certain kind in an optimal way.
The common example is traffic rules about the side of the road on which
one is to drive. Once a side is chosen by law, it is generally prudent, and
morally obligatory without some good reason to the contrary to abide by
the choice.

Laws, or a legal system with a lack of adequate laws, can also have
wrong or immoral consequences even if the contents of particular laws
are not unjust. There is no reason to believe that just because a law
passes, it is for the best or that it is right or moral, even if the people
passing it think it is.
For example, laws concerning women are usually in favour of women.
But with changing times, these laws have been misused by women for
implicating men with false charges.

Not all morality is enshrined in law because law is in a sense

"incomplete". Many unfair and wrong business practices are not
anticipated and therefore not made illegal until someone invents and uses
them in a way that clearly mistreats others. These practices are wrong and
immoral from inception, but not illegal until law "catches up" to them. In
a sense morality is "complete" and applies to all acts, but the law
typically is "incomplete" and only applies to behaviors legislation has
already addressed, or that the courts can interpret to have been addressed
by implication in existing law. Law has to be "invented" or manufactured;
morality only has to be recognized. And in the creating of specific laws
with specific wording, loopholes creep in because it is difficult to
predetermine and specify those and only those acts intended to be
covered. Morality does not have loopholes. It is probably impossible to
make a complete set of laws that anticipate, enumerate, fully describe,
and forbid every possible specific wrong behavior.

Not all morality should be enshrined in law, because enforcing some

morality would be far worse than not enforcing it. Liberty and autonomy
are important values and they sometimes require letting someone make a
mistake or do the wrong thing -- as long as the wrong that is done is not
so bad or so costly that civil society has a legitimate interest to prevent it.
There are sometimes disagreements about where the line should be
drawn, but there are clearly some actions where autonomy is more
important than being forced to do what is right by law, and there are
clearly some actions where prevention of harm overrides autonomy and
liberty. While society has a legitimate right to enforce morality in
preventing great harm (or cost), it need not, and should not, make
everyone do the right thing all the time. In cases where autonomy
overrides prevention of wrongdoing, the law should not require people to
do what they ought to. While it is wrong for people not to do what is
right, it is worse or "more wrong" for the law to get involved in those
situations where either autonomy and privacy are more important than
enforcing right behaviors, or in those cases where police or other
government agencies will make things even worse by trying to enforce
right behaviors.
For Example, guilt must be proved by the prosecution beyond reasonable
doubt, even if guilty people sometimes go free, because we have made
the decision that it is better to free the guilty in cases difficult to prove
reasonably than to risk convicting the innocent.

Relationship between Law and Morality

There are times when we talk about unfair or unjust laws, laws that are
immoral, laws that ought not to be obeyed or enforced; and we typically
do not mean just that they are unconstitutional, but that they are
counterproductive to their intended purpose or that they are bad or
harmful or morally unfair or unjust laws.

We also deliberate about what the law ought to be and about which laws
ought to be written, which bills passed or amended, and we believe that it
matters that we try to get it right, not that any law will do as well as any
other or that it does not matter what the law is. We say "there ought to be
a law" about some behaviors that we think are wrong to permit. Law does
not seem to be just the occasional coincidental similarity or accidental
overlap with moral principles or with descriptions of ethically right acts
that would follow from moral principles.

Laws are not generally just randomly chosen out of a set of all possible
behavioral proscriptions or prescriptions, though it sometimes seems that
some particularly flawed or foolish laws may have originated that way.
Normally laws are desired to be crafted carefully and with regard for our
moral notion of justice and fairness, where those concepts apply, and with
utilitarian regard to their fostering good, rather than harmful
consequences.

Given that some laws are immoral, that some laws reasonably are neutral
with regard to morality, and that there are institutional limitations to
enforcing some aspects of morality, the interesting question should be,
not what the relationship is between law and morality, but what it ought
to be.

Confusions About the Relationship Between Law and

Morality

First, to hold that the law ought to be moral (or at least not immoral or
morally wrong in a serious way) does not mean that the law ought to
coincide at some particular time or instance with either popular or critical
morality. Both might be wrong. Discovering what is actually morally
right sometimes takes vigilance and openness to new evidence and
reasoning. Reasoning is necessary because we are not omniscient beings;
and if we were omniscient, we would not need reasoning; we would
simply know everything and not have to try to deduce what we don't
know from what we do know when the evidence is not totally complete
or the conclusion from it immediately obvious. Omniscience would make
"evidence" and "deductions" of any sort unnecessary. But we are stuck
with having to reason; and reasoning is not infallible.

Second, it is not that the law is somehow objective while morality is not,
and that we need law in order to be objective about morality. If morality
were not objective, it would be impossible to interpret it objectively in
terms of laws that correspond. Laws would not have moral imperative or
moral force if they were not themselves morally right. And if there is
subjective disagreement about what is morally right in a given context,
there will be disagreement about what the objective law ought to be that
conforms to the moral principle at issue. Substituting laws for moral
principles only changes the locus of the disagreement from being about
what the right thing to do is to being about what the right legislation
ought to be, or about what the right verdict ought to be when the law
itself is not clearly definitive. It does not magically eliminate the original
disagreement.

Is law responsible for the enforcement of religion and

morality?

Pornography, prostitution, homosexuality etc. are areas of ones own

consciousness and hence it is an area of conflict which is still continuing.
So, does law has got the right to intervene with religious and moral
feelings among people?
We can never deny that a major content of law derives its content from
that of morality. Like that criminal law is a product of moral notions. For
example, all religious and moral norms say not to kill or not to steal, and
it is the same here in law. So, we have almost the same content between
law and morality. The positive thinkers have thought in a narrow
interpretation of law because they overlooked religious and moral values.
The actual conclusive situation is that religion, morality or law all have
the work of controlling the behaviour of individuals of our society, hence
we must not exclude the importance of morality in our society. In the
case of International Humanitarian Laws, certain moral standards are also
recognized as a part of law. So, the absolute separation of law and
morality is not possible in these areas where morality produces a positive
effect in society which is prospective in nature.

Law and Morality are just two sides of the same coin

Morality seeks to influence our behaviour by way of our desires, whereas

law is the 'back-up' option, and targets our beliefs.
Yet the typical opinions in a contemporary liberal democracy are likely to
be:
(1) that morality cannot be legislated; and
(2) that even if morality could be legislated, it should not be. That to do
so is somehow improper, even tyrannical, either because there is no
morality objective enough to justify legal enforcement or because one's
autonomy and individuality would be violated by attempts to legislate
morality or perhaps even because one really has no autonomy that can
respond to any external directive.
Conclusion

There can never a hard jacket or a universal formula which could

determine that should law be used to enforce morality. It can only be
concluded that the level of enforcement of moral standards depends upon
case to case.

In the cases where morality shadows a good and beneficial effect on the
society, there if required, law could be used to enforce that positive
morality.
On the other hand, that morality which produces any harmful effect in
any form in the society, there law should never be used to enforce such
morality.