Law N Morality - Pol SC Projct
Law N Morality - Pol SC Projct
Law N Morality - Pol SC Projct
Acknowledgement:
This is to state that I, (TULIKA SINGH, ROLL-278) completed my first semester project work
of POLITICAL SCIENCE on the topic LAW AND MORALITY. This project would have not
come to and end successfully without the help of many distinguished and undistinguished
personalities. I sincerely acknowledge the help rendered to me by our Faculty for the Political
Science, Mr. S. P. Singh. He has helped me a lot whenever I needed any sort of assistance and
guidance related to the topic. I acknowledge the sincere help of our library staffs and our net
centre-in-charge, who by rendering me help in locating appropriate resources to collect materials.
It is a good platform to recognize the help and guidance furnished to me by many persons in this
regard; I heartily acknowledge their help and support rendered to me. Without the help of the
above mentioned personalities and many unrecognized people this project would have never
been completed.
TULIKA SINGH
Table of Contents:
Research methodology
Introduction
Structuring
Analysis
* Law and Morality A Relation
* Law and its Forms
* Law Responsible for the Enforcement of
Religion and
Morality
* Even if some morality is outside the scope
of Law,
could Law's domain be a
subset of the Moral?
* Ideas of Lord Delvin
Cases and Illustrations
Conclusion
Reviews of The Morality of Law
Bibliography
Research Methodology:
The topic Law and Morality is a very vast topic. My observations and conclusions are based
upon the secondary materials. The methodology adopted by me to draw conclusion about the
topic is basically depended upon non-doctrinal research. I took the help of various research
papers having focus upon the study of relation between law and morality. I also took the help of
text books, novels, magazines, public opinion but to a very limited scope which was basically a
feedback from my friends and the most unexhaustive resource that is the internet. The books I
referred to were from the library of Chanakya National Law University.
Introduction
Law is defined as body of rules binding on the members of a community, either by statute or by
consent. Morality from the Greek "mos, more," meaning "customs and habits" is defined as that
which concerns the distinction between right and wrong in relations to actions, conditions and
character, or as that which is concerned with vice and virtue.
Morality is based on autonomy, which comes from within, the conscience and the character.
Therefore Institutional Law, which comes from outside, is often contrasted with Moral Law.
Law and morality are too vague to understand. It must be added here that the
notions of law and justice can't be captured and presented before us within a
few sentences. These notions are too vast that even words are not sufficient to
define them. Many jurists from the ancient Greek period to the modern and
even the post-modern era have attempted numerously to define these
concepts, but have failed. One of the reasons may be that the roots of these
concepts lie somewhere within the human psyche, which is extremely random
and versatile. Well it is required to describe the tenets of the two main schools
of law.
When compared with morality, it seems to be assumed that everyone knows what the second term of
the comparison embraces. In the present case, it seems to me, the legal mind generally exhausts itself
in thinking about law and is content to leave unexamined the thing to which law is being related and
from which it is being distinguished.
Structuring
Legal Positivism:The start of the nineteenth century may be regarded as the beginning of the
positivist movement. The term positivism has many meanings, which are tabulated
by Professor H.L.A. Hart as follows:
1. Laws are commands. This meaning is associated with the two founders of British
Positivism, Bentham and his disciple John Austin,
2. The analysis of legal concepts is:
* worth pursuing
* distinct from sociological and historical inquiries,
* distinct from critical evaluation,
3. Decisions can be deduced logically from the predetermined rules without
recourse to social aims, policy and morality,
4. Moral judgments cannot be established or defended by rational argument,
evidence or proof,
5. The law as it is actually laid down, positum, has to be kept separate from the
law that ought to be.
The positive law school has its main pillars as, Jeremy Bentham, John Austin, Prof.
H.L.A. Hart and Kelson. Actually positivism has grown out of the ashes of
renascence in Europe. It is hence a liberal thought or a liberal ideology whose main
aim is to bring positive reforms in the society through the instrument of state and
not through the clergy. What positivism represents is the intellectual reaction
against naturalism and a love of order and precision.
After having a brief idea of legal positivism, we should move to the Natural Law
school.
Natural Law School:The term "natural law". like positivism, has been variously applied by different
people at different times.
1. Ideas which guide legal development and administration.
2. A basic moral quality in law which prevents a total separation of the "is" from the
"ought".
3. The method of discovering perfect law.
4. The content of perfect law deducible by reason.
5. The conditions sine quibus non for the existence of law.
Analysis
Law and Morality A Relation: Natural law school dominated till the
nineteenth century, beginning from the ancient Greek period. Natural law school
discussed what law is etc., but never discussed law as an empirical formula, and
never made strict separation between what law is and what law ought to be.
Natural law thinkers while talking of law talk about law made by man's mind
consciously, as opposed to law made as a result of morality lacking conscious
element. Natural law thinking is one form or other is pervasive and is
encountered in various contexts. Values, for instance, as pointed out, play an
indispensable part in the development and day to day administration of law. In a
different sphere natural law theory has tried to meet the paramount needs of
successive ages through history, and an account has been given of the ways in
which it supported power or freedom from power according to the social need of
the time. Further natural law school offers an indirect help with two
contemporary problems, namely, the abuse of power and the abuse of liberty. 1
See the note to page 106 of Hildreths translation as reprinted in the International Library of Psychology,
Philosophy and Scientific Method (1931).
Positivism on the other hand, by seeking to insulate legal theory from such
considerations refuses to give battle where battle is needed perhaps wisely,
perhaps to its own discredit, depending on the point of view. The Natural law
thinkers have always considered the principles of morality as higher law and
they look at man made law contempt and ridicule. 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. 2
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.
Now it is time to go a little further deep in the project. We are constantly talking
about law and morality, so let us know the meaning of these two concepts. Law
is continuously evolving norm or rather we should say that it is a part of a
normative system whose work is to regulate certain norms in society. 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
sought of 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.3 As in a Hindu family, young people touch the feet of
elders to wish them. There is no logic behind these morals but still these morals
do prevail in our society. This is fully ones own private practice in which nowhere
law has to intervene. A morality can be one which throws a negative impact on
2
3
society and the other which can benefit the society. 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. For example, the road traffic laws, when are
applied on a society get internalized in a citizen's behavior after certain time.
Law has got a coercive backing which works through institutions. So, idea of
sanction, that? one will be punished by god? as is being propagated by religion
and the so called contractors of morality from years, has become very loose.
That is the reason, why religion and morality has become loose and ineffective.
So, constitutionalism has taken a front foot. I prove this point of mine by the
following example of our contemporary society. Today in our present society,
morality and religion are facing challenges put forward by technology, fast
urban
life,
and
secularism,
equality
before
law,
democracy,
and
constitutionalism.4
Since today people are educated in a liberal atmosphere, we are able to think
on our own, we know the difference between right and wrong, truth and false.
So, as in earlier society it was possible to create an easy fear factor in the minds
of people on the name of god. This clash is bound to take place as people are
now not dominated by anybodies whims and fancies or any religious or moral
sanctions, but they are capable of taking their own free decisions. When one
tries to analyze the distinction between law and morality, one feels vaguely that
somehow law is connected with reason and conscience. Therefore law has the
characteristic of binding whereas morality has the characteristic of being bound.
The great jurist asserts that force is necessary to control human behaviour
4
The Common Sense of Political Economy, ed. Robbins (1933), pp. 156, 179 80.
all religious and moral norms say not to kill or not to steel, and it is the same
here in law. So, we have almost the same content between law and morality.
Then the question arises that, if it is so, then what is the difference between law
and morality? The answer is that, the legal system is distinct from religion and
morality in the? Form? And not in the content.8
Law is influenced from both religion and morality and hence their takes place a
sought of interaction between the legal system and the moral and religious
faculty of our society. In a traditional society laws have never had a very
dominating character, but religion and morality had always had a very
predominant role.
But in a modern society life changes very fast, hence morality and religion are
under a great pressure. Hence, law is the only alternative to human
development. In a multi religious, liberal and multi communitarian society, law
can only work in a impartial and efficient manner. 9 The greatest examples are
the world's biggest democracies. Being more specific and illustrative, I would
like to quote the example of India, U.S.A., England, and France etc. which have
successfully established a deliberate and conscious mode of law making process
through constitutionalism and this is done out of an age old monarchial and
religious morality10. In Russia, before the 1917 Bolshevik Revolution, the
morality among general masses was that the Czar is having divine powers to
rule over them. Laws were used to enforce such moral standards, but after long
period of exploitation mass revolution broke up in 1917 and finally the negative
effects of morality were overthrown and a constitutional setup was established.
The same happened during French revolution. In India, in the ancient Vedic
period, the common morality was that society was unequal and hence caste
system and untouchability grew. This moral standard was given the institutional
shape of law. But, after independence in 1947 we have stopped the legal
enforcement of such illegitimate morals.
Now a question arises that, is law responsible for the enforcement of
religion and morality?
Pornography,
prostitution,
homosexuality
etc.
are
areas
of
ones
own
11
a button and register their vote. Most importantly, how can we assess the
merits of their claim? If we cannot, then in reality they can prohibit whatever
they want (and for whatever reason they want). No matter how objective
morality may be, any such doctrine of constitutional law is recipe for tyranny.
Take the issue of living relationships, which carries a moral ban on it. I don't
understand that if two major individuals with their exercise of free consent
decide to live together, where the question of infringement of any rational
standards arises. This shows that the moral standards are never rational by
effect.12
Now I ask the question that, should a law be made to enforce such moral
standards. Is such a law not repugnant with the constitutional principles of
liberty and freedom?
11
12
The legal positivists like, Bentham, Austin, Kelson have always said that law
must never be used as an instrument of enforcement of any moral standards.
Therefore, as one cannot see the mind and conscience, elements of morality
become weak and not determinable. But law is convenient, the present writer
asserts again that it is only convenient; it has withstood the test of time. At any
particular time, for any situation, law becomes a technique to establish a certain
expected social behaviour. Morals may be for enlightenment and would facilitate
individual peruses.13 Therefore it is thought and envisaged by the present writer,
as compulsions and aspirations influence life, a legal system should consist of
principles of convenience and feasibility whereas morality should be left to
individual freedom and practice. Legal enforcement of these moralities which
causes negative impact in the growth of our society must never be determined.
Recently a pastor informed his congregation that Christians can no longer seek
to impose their moral values on a society which does not accept Christianity.
The second part of the statement, at least, is quite wrong. While Church
membership and attendance has sharply decreased, the Roy Morgan Study of
the Values of the Australian People demonstrates that 80% believe in God.
Should Christians seek to impose their moral values on law and society. There
are some who are forcibly and aggressively arguing that Christian values must
be expelled from law, society and politics. Gareth Evans (now Senator Evans) is
reported in The Sydney Morning Herald, May 7th, 1976, as stating at a
convention of the South Australian Council for Civil Liberties that children
wanted a right to sexual freedom and education and "protection from the
influence of Christianity.14
The same article referred to Mr. Richard Neville (of Oz fame) as stating that
"promiscuity is one beneficial way of breaking up the family structure, which has
led children to become the property of their parents. Law cannot be an
instrument of expression of moral standards, rather law has to be independent
13
14
The Nature and Sources of the Law (2nd ed. 1921), pp. 172-73.
Nichomachean Ethics, Book V, 1137a.
of all sought of moral dogmas except certain areas in which law is dominated by
morality. e.g. Legal areas like the business laws, cyber laws, tax laws, company
laws, trade laws, etc are exclusively a legal treatise and morality has got
nothing to do with that of law in such areas.15 Take the historical example of SITA
whose fundamental and moral instinct has now changed it into PITA.
But on the other hand 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 steel,
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.
There seems to be quite a strong connection between law and morality.
Although people sometimes say "you shouldn't legislate morality", they
presumably don't really mean this - why would we outlaw rape and murder if
they weren't wrong? Instead, I suppose they mean that people shouldn't impose
their personal moral views (especially regarding sexuality) upon others. I would
agree with that sentiment, though my reason is precisely because I think
legislation should be morally informed, and the "moral views" in question are
entirely misled.16
15
16
is
damn
shame.
When
conservative
groups
advocate
bigotry
consider how society can influence the actions of its members. According to
belief-desire psychology, there are two broad options: change someone's
beliefs, or change their desires.
Morality, by this understanding, corresponds to the latter option. That is,
morality is a system of socialisation whereby society instills in its members the
desire certain ways. (I discuss some of the implications of this view in more
detail here.)19
The other method of influence is to alter people's beliefs about how best to fulfill
their desires. This is where Law comes in. Its role (according to this
interpretation) is to serve as a deterrent for those who, for whatever reason, fail
to be bound by morality. It achieves this through the threat of punishment, i.e.
by instilling in citizens the belief that breaking the law is not in their own best
interests - they could get caught and sent to jail, which would surely thwart
many of their other desires.20
So by this view, law and morality are just two sides of the same coin namely, that of socialisation. Morality seeks to influence our behaviour by way
of our desires, whereas law is the 'back-up' option, and targets our beliefs.
This is true in the United States as well, and not only in how our legally
mandated school systems and our criminal laws contribute to the shaping,
including the moral training, of citizens.
21
legislate morality or perhaps even because one really has no autonomy that can
respond to any external directive.
Such concerns are not evident in the Ethics: law is needed both to help
habituate citizens to virtuous actions and to help maintain the salutary habits
they acquire. These needs can be recognized even by those who are aware that
the virtues generally fostered by law are not the highest. The opinions one may
have about the good, the true, and the beautiful are a secondary concern of
most laws. Still, it is well to keep in mind Aristotle's counsel that one who is "to
listen intelligently to lectures about what is noble and just must have been
brought up in good habits." For proper habituation, laws can be most useful, if
not indispensable. Although intellectuals of liberal democratic sympathies may
not believe that morality depends on law, it is almost impossible for any regime
that takes itself, and is to be taken, seriously not to shape its citizens with
respect to morality. To deny that legislation of morality can or should take place
does not eliminate such legislation; it merely conceals it, perhaps distorts it, and
otherwise confuses and misleads rulers and ruled alike. (Here, as in physics,
much that Aristotle noticed and relied upon is tacitly relied upon by us as well,
but relied upon haphazardly because it is not properly noticed.)22
It would be useful, therefore, to indicate how pervasive Aristotle understands
the law to be with respect to morality in a community. When we see what law
can mean, and how it works, we may better appreciate what the law does in the
service of morality, even in such a liberal democracy as ours. To speak of the
influence of the law is, we shall see, to speak of the many ways that the
community forms the citizen and guides the human being. For us, however, the
term law does tend to be limited to what "government" does, to the statutes
and decrees that governments issue. We have noticed the most conspicuous
way, drawn upon at the end of the Ethics, in which morality is dependent on law.
It should be added here that not only is morality somewhat dependent on law,
22
but also that the law itself is to a considerable extent dependent on morality.
23
situations
on
the
basis
of
and ethics, no society can exist. Each one of us has ideas about what is good
and what is evil; they cannot be kept private from the society in which we live. If
men and women try to create a society in which there is no fundamental
agreement about good and evil they will fail; if, having based it on common
agreement, the agreement goes, the society will disintegrate.
"For society is not something that is kept together physically; it is held by the
invisible bonds of common thought. If the bonds were too far relaxed. The
members would drift apart. A common morality is part of the bondage. The
bondage is part of the price of society; and mankind, which needs society, must
pay its price ".
Held: Treatment could properly be withdrawn in such circumstances, because the best interests
of the patient did not involve him being kept alive at all costs.
In this case feeding him was treatment and that treatment would not cure him and therefore was
not in his best interests.
It was lawful for D's doctors to stop feeding him artificially.
See also Frenchay Healthcare National Health Service Trust v S [1994]. Similar issues can arise
in respect of the very elderly or in respect of babies born with very severe mental or physical
handicaps, especially where major (and possibly repeated) surgery would be needed to keep them
alive see Re J [1991].
It was lawful for D's doctors to stop feeding him artificially. The court had no
option but to make a decision one way or the other.
Central London Property v High Trees House [1956] KBD Denning J
[Law and morality - the courts enforce a promise]
D leased a block of flats in London from C in 1937. When war broke out, many flats were left
empty as people were evacuated to escape bombings. C agreed to reduce the rent by half if D
stayed. D paid the reduced rent until the end of the war, and C then claimed for the "arrears".
Held: Denning J "discovered" the equitable doctrine of promissory estoppel, and said that
although C were once again entitled to the rent originally agreed after the war ended, they could
not go back on their promise to accept a reduced rent for the earlier years.
When a party to a contract makes a promise to the other, which he knows will be acted on, that
he will not enforce his strict legal rights; the equitable principle of promissory estoppel makes
that promise binding on him until such time as he gives reasonable notice of his intention to
resume those rights.
Denning J (obiter dicta) said that had Central London sued for the arrears for the years 1940-45,
it would have failed. It would have been estopped from going back on its promise [as set out in
the 1940 agreement] to accept a reduction in rental, even though that promise had not been
supported by any consideration from High Trees because to hold otherwise would have been
unjust
S allowed to die.
Gillick v West Norfolk and Wisbech Area Health Authority [1986] HL
[Law and morality - whether doctor may give advice and treatment on
contraception to girl under 16 without parental consent]
Mrs Gillick a Roman Catholic mother of five daughters sought a declaration that a doctor would
be acting unlawfully if he gave contraceptive treatment for any of her daughters without the
mother's consent.
It was argued on the one hand that teenage pregnancies would increase if the courts ruled that
parental consent was necessary, on the other hand that the judges would be encouraging underage sex if they did not.
Held: A doctor could prescribe contraceptives to a girl under 16 to prevent damage to her health,
even though he knew it would assist a man to have unlawful sexual intercourse.
By a majority of three to two. A child under 16 who can fully understand the implications of the
proposed treatment (a "Gillick competent" child) can give her own consent to medical treatment.
(Since Parliament had not legislated, the courts had to make a decision one way or the other.)
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. For example, in the case of
International Humanitarian Laws, certain moral standards are also recognized as
a part of law or in another illustration that, all religious and moral norms say not
to kill or not to steel, and this moral is enforced through law. 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.
Let's summarize the relationship between morality and law.
(1) The existence of unjust laws (such as those enforcing slavery) proves that morality and law are
not identical and do not coincide.
(2) The existence of laws that serve to defend basic values--such as laws against murder, rape,
malicious defamation of character, fraud, bribery, etc. --prove that the two can work together.
(3) Laws can state what overt offenses count as wrong and therefore punishable. Although law courts
do not always ignore a person's intention or state of mind, the law cannot normally govern, at least
not in a direct way, what is in your heart (your desires). Because often morality passes judgment on a
person's intentions and character, it has a different scope than the law.
(4) Laws govern conduct at least partly through fear of punishment. Morality, when it is internalized,
when it has become habit-like or second nature, governs conduct without compulsion. The virtuous
person does the appropriate thing because it is the fine or noble thing to do.
(5) Morality can influence the law in the sense that it can provide the reason for making whole
groups of immoral actions illegal.
Bibliography:
Sites:
www.google.com
www.yahoo.com
www.wikipedia.org
www.jurisprudence.net
www.politicalscience/lawandmorals.html
Books:
The Morality of Law Lon L. Fuller (Revised Edition)
The Road to Serfdom
The Nature and Sources of Law