Law, Morality and Justice

law justice and morality are often used interchangeably in layman terms. Though they all are part of the
same system and have a lot of common factors, it cannot be ignored that they connote different meaning
in the Legal term. Before understanding the interlinking of law justice and morality, it is necessary to
understand their individual meaning.

Law

As of now, there is no definition that is universally accepted. Jurists have made effort to define it on the
basis of ‘nature’ ‘source’ ‘effect’ ‘purpose’ and other factors. Society is one of the major factors in
explaining the law. Law tells people what they should and must do and what they must not do. For
example, the law tells people that they should not hurt people and if they do they will be punished. In the
same way, even society tells us what to do and what not to do. If we do not obey society looks down on
us. For example to respect elders.

Law is a social science and to keep up with the change in society it has to change thus there can be no
perfect definition of law because of the ever-changing society. To give the definition of law the analysis
of various legal concepts against various disciplines like sociology, political science, history, psychology,
economics is needed to be done with the element of logic and practicality, to meet the ends of justice.

Justice

The concept of justice is an age-old justice. It is necessary for the growth of the society. Society demands
that people should live peacefully in society. While living in the society we experience a conflict of interest
and expects that other people have rightful conduct towards him. But on contrary he being ‘selfish’ by
nature, and may not act justly to others. Thus it is necessary that there should be some external force
which is necessary for maintaining the society. Salmond and Roscoe’s pound have emphasized the
importance of justice in their definition of Law. For Salmond without justice, an orderly society is
unthinkable.

Blackstone: Justice is a reservoir from where the concept of right, duty, and equity evolves.

The essence of legal justice lies in ensuring uniformity and certainty of law and at the same time ensuring
that rights and duties are duly respected by the people. Justice ensures impartiality. One has to be just
not to himself but toward all members of the society.

Law and Justice in modern society

“Justice according to law” is the modern view of the justice in society. Dicey has called this principle as
“Rule of Law”. This includes that everyone is equal before the law and there should be no arbitrariness
and law should apply justly to everyone without any differentiation. ‘No one is above law’

Civil Justice

Citizens can enforce and protect their legal civil rights and to resolve the disagreement between two or
more parties through the civil justice system. The system ensures the protection of rights instead of
punishment.
Criminal justice

The main aim of criminal justice is to punish the offender. It is state who punishes the offender. the end
of criminal justice is to punish the offender and create a society so that there is no crime. Punishment is
in some form of pain and to create example is society and to show the subjects of the state that if they
won’t follow the law same will happen with them

Four theories of punishment are:-

Deterrent: To create an example in society.

Retributive: an eye for an eye and tooth for a tooth

Preventive: preventing the criminal from repeating the offense through measures such as imprisonment,
the death penalty.

Reformative: Reformation of offenders through the method of individualization

Morality

In the ancient time, there was no distinction between Law Justice and morality. In Hindu law, there were
Smritis and Vedas. The Greeks in the name of ‘natural rights’ formulated a theoretical moral foundation
of law. The Romans recognized moral laws on the basis of ‘natural law’. In middle age, churches came in
power and Christian morals were considered as the basis of law.

The modern trend in morality

When the churches were removed from power, it was asserted that law and morals are different. Law
derives its authority from state and not from morals. In the 18th century ‘Natural law’ theory was
becoming popular and it had a moral foundation. It was again considered that law and morals are same.
In the 19th Century, Austin propounded his theory that morality has nothing to do with the law. Law is
the command of sovereign backed by sanctions. In the 20th century, Kelsen said that only legal norms
are subject of jurisprudence. He excluded all other extraneous things including the morals from the study
of law.

India: In ancient time there was no distinction between law and morals. In modern times, the Privy Council
in its decision always made a distinction between law and morals.

The distinction between law and morals

Morals are an end in itself. They should be followed because they are good in themselves. They are
concerned with the character of the individual and helps in molding the character. Morals look into the
motive behind the act of the person. The obedience of morals is a matter of individual conscience. Morals
are generally universal. Roscoe Pound said “ As to the application of moral principles and legal percepts
respectively, it is said that moral principles are of individual and relative application; they must be applied
with reference to circumstances and individuals, whereas legal rules are of general and absolute
application”
Law is not an end in itself, it is meant to an end. Its aim is smooth functioning of the society. Law
concentrates on the society and lays down rules concerning the relationship of individuals with each other
and with the state. It is concerned with the conduct of the individual. Law can only function properly with
the help of the proper functioning of the state and when all the subjects surrender themselves to the
state. Law is relative, relative to time, place, and people. It is applied uniformly to all people.

The relationship between Law and Morals

Though there are many differences between law and morality, it should not be presumed that there is no
similarity between the law and morals. They have the same center but different circumference. They are
very closely related. It depends on the definition of the law whether they will include morals or not.
Different schools have given a different definition of law.

The relationship between Law and Morals can be studied from 3 angels

1- Morals as the basis of law

1. Morals as the basis of law –

The law and morals have a common origin but due to the course of development, they came to differ. In
the earlier society, there was no distinction between law and morals. They had a common source and
their sanction was of the same nature. Later on, with the development of the society and formation of
the state, it picked up those rules which were necessary for the functioning of the state and applied its
own sanctions to enforce them. These rules are called ‘law’. The ruled which were for the ‘good’ of
humanity but the state could not ensure its observance were left as they were. These are called ‘morals’.
Thus it could be said that law and morals have a common origin, but diverge in their development. Many
rules are common to both of them such as NOT killing a person, NOT stealing.

Queen vs Dudley and Stephen’s Case: 14 Queens Bench Division 273 (1884)

Criminal Law–Murder–Killing and eating Flesh of Human Body under Pressure of Hunger–”Necessity”–
special Verdict–Certiorari–Offence on High Seas–Jurisdiction of High Court.

Summary: The Defendants, Thomas Dudley (Mr. Dudley) and Edwin Stephens (Mr. Stephens) (Defendants)
and two other gentlemen, Mr. Brooks and the victim, Richard Parker (Mr. Parker), were stranded on a
boat for several days. When it appeared that the whole party would likely die of thirst and starvation, the
Defendants decided to sacrifice Mr. Parker for the good of the rest.

A man who, in order to escape death from hunger, kills another for the purpose of eating his flesh, is guilty
of murder; although at the time of the act he is in such circumstances that he believes and has reasonable
ground for believing that it affords the only chance of preserving his life.

At the trial of an indictment for murder it appeared, upon a special verdict, that the prisoners D. and S.,
seamen, and the deceased, a boy between seventeen and eighteen, were cast away in a storm on the
high seas, and compelled to put into an open boat; that the boat was drifting on the ocean, and was
probably more than 1000 miles from land; that on the eighteenth day, when they had been seven days
without food and five without water, D. proposed to S. that lots should be cast who should be put to death
to save the rest, and that they afterwards thought it would be better to kill the boy that their lives should
be saved; that on the twentieth day D., with the assent of S., killed the boy, and both D. and S. fed on his
flesh for four days; that at the time of the act there was no sail in sight nor any reasonable prospect of
relief; that under these circumstances there appeared to the prisoners every probability that unless they
then or very soon fed upon the boy or one of themselves, they would die of starvation:

Held, that upon these facts, there was no proof of any such necessity as could justify the prisoners in killing
the boy and that they were guilty of murder.

Ratio Decidendi: A person may not sacrifice another person’s life to save his own.

Mr. X. Vs Hospital Z (1998) 8 SCC 296

Appellant’s blood was found to be HIV (+). On the account of disclosing the information without the
consent of the appellant, proposed marriage of the appellant was called off. Further, he suffers shame in
the society. Appellant sued the hospital on the ground that hospital had the duty to maintain
confidentiality and the right of the appellant is protected under ‘Right to life’ under Article 21 of the
constitution.

The issues before the Supreme Court were as follows:

1. Whether the Respondents were guilty of violating the Appellants right to privacy guaranteed under
article 21 of the constitution?

2. Whether the Respondents were guilty of violating their duty to maintain secrecy under medical Ethics?

The judgment of The Supreme Court:

The Judgement of the Supreme Court was as follows:

1. In deciding the first issue, the Court held that in the event of a conflict between the Appellants
fundamental right to privacy and Ms. As fundamental right to be informed about any threat to her
life/health, in such an event the Latter’s right to be informed will override the Appellants right to privacy.
Hence the Court held the Respondents not guilty on the first count.

2. In deciding the second issue, the Court held that the duty to maintain secrecy in every Doctor-Patient
relationship was also not absolute and such duty could be broken and hence secret divulged where
compelling public interest so requires. Hence the Court held the Respondents not guilty on the second
count as well.

3. The Court further held that The Appellants right to marry was suspended until complete cure of the
Appellants dreadful disease. The Court based this decision on various Statutes which give the right to the
spouse to seek divorce on the ground of the other suffering from a communicable venereal disease such
as AIDS.

4. The Court held that in the event the Appellant did decide to marry while suffering from such dreadful
disease, he shall be punishable under section 269 & 270 of the Indian Penal Code.
5. The court held that AIDS is the product of undisciplined sexual impulse. This impulse is a notorious
human failing if not disciplined can afflict and overtake anyone however high or low he may be in social
strata. The Court cannot assist that person to achieve that object.

6. The Court held that the Hippocratic Oath taken by medical men at the time of entering the profession
is not enforceable in the Court of law as it lacks statuary force.

“As a human being, Ms. ‘Y’ must also enjoy, as she, obviously, is entitled to, all the Human Rights available
to any other human being. This is apart from, and, in addition to, the Fundamental Rights available to her
under Article 21, which, as we have seen, guarantees “Right to Life” to every citizen of this country. This
right would positively include the right to be told that a person, with whom she was proposed to be
married, was the victim of a deadly disease, which was sexually communicable. Since “Right to Life”
includes right to lead a healthy life so as to enjoy all faculties of the human body in their prime condition,
the respondents, by their disclosure that the appellant was HIV (+), cannot be said to have, in any way,
either violated the rule of confidentiality or the right of privacy. Moreover, where there is a clash of two
Fundamental Rights, as in the instant case, namely, the appellant’s right to privacy as part of right to life
and Ms. ‘Y’s right to lead a healthy life which is her Fundamental Right under Article 21, the RIGHT which
would advance the public morality or public interest, would alone be enforced through the process of
Court, for the reason that moral considerations cannot be kept at bay and the judges are not expected to
sit as mute structures of clay, in the Hall, known as Court Room, but have to be sensitive, “in the sense that
they must keep their fingers firmly upon the pulse of the accepted morality of the day”

2. Morals as a test of positive law

In early times it was contended that law must be in conformity with morals. It was supported by Greeks
and Romans. The Romans recognized moral laws on the basis of ‘natural law’. Later churches came in
power and said that if the law is not in conformity with the Christian law it is invalid. When the churches
were removed from power, it was asserted that law and morals are different.

Law derives its authority from state and not from morals. In the 18th century ‘Natural law’ theory was
becoming popular and it had a moral foundation. It was again considered that law and the rules are same.
In the 19th Century, Austin propounded his theory that morality has nothing to do with the law. Law is
the command of sovereign backed by sanctions. In the 20th century, Kelsen said that only legal norms
are subject of jurisprudence. He excluded all other extraneous things including the morals from the study
of law.

Now it cannot be said that if the law is not in conformity with morals it is not binding. However l, aw more
or less is in conformity with morals. The conformity of morals with lathe w is via very important factor for
its obedience.

3. Morals as an end of the law

Morals have often been considered the end of the law. Many jurists have defined law on the basis of
‘Justice’. And thus there is a relationship between law justice and morality. Most jurists say that the end
of the law is to secure ‘justice. Justice has more or less been defined in the terms of ‘morals’. Thus the law
is used to give an idea of both morals and justice.
Laws and morals have in an fluence on each other. In judicial arbitration and also in law making it plays a
big role because it cannot be against the morals of the society.

Types of Morality

a) RELIGIOUS MORALITY

God revealed to human beings on how to be a good believer. The sanction by the God is in the form of
sin/good deeds. Concern the relationship between human and the God.

b) MORALITY AND NATURE

Relationship between the human & nature.

c) INDIVIDUAL MORALITY

Individual-centred. The person himself choose to believe something is immoral or not and not being
dictated or told by the society.

d) SOCIAL MORALITY

Relates the relationship between the members of the society as a whole. Most significant aspect of
morality that cut across all of the other aspects and is found in more ethical systems than any of the
others.

Three main theories to approach law and morality

1- The Liberal View (harm to others) Proposed by John Stuart Mill. Also sharing a libertarian view is
the report given by the Wolfenden Committee.

John Stuart Mill posits that the only purpose for which power can be rightly exercised over any
member of a civilized community against his will is to prevent harm to others. His own good,
either physical or moral is not sufficient. Mill argues this approach is good for individuals and
society.
The Wolfenden Committee also of the Libertarian view posits that they see the law as preserving
public order and decency, protecting the citizen from what is offensive and injurious, and also
provide sufficient safeguards against exploitation and corruption of others, particularly those who
are vulnerable because they are young, weak in body and in mind, inexperienced, or in a state of
special physical, official or economic dependence. However, it is not the function of the law to
intervene in the private lives of citizens, or to seek to enforce a particular pattern of behavior
further than is necessary to carry out the purposes outline. Based on this premise the Committee
recommended that homosexuality between consenting males in private should no longer be a
criminal offence. They suggested that the society ought to give the individual freedom of choice
and action in matters of private morality. They also stated that unless a deliberate attempt is
made by society, acting through the agency of the law, to equate the sphere of morality with sin,
there must remain a realm of private morality and immorality which is in brief terms “not the
law’s business”. They made the same argument for prostitution.
2- The Moralistic view (harm to society) proposed by Lord Devlin
According to Devlin there is only one explanation of what has been accepted as the basis of
criminal law and that is that there are certain standards of behavior or moral principles which
society requires to be observed, and the breach of them is an offence not merely against the
person who is injured but against society as a whole. Devlin believed that there was such a thing
as public morality. According to Devlin, an established morality is as necessary as good
government to the welfare of society. Societies disintegrate from within more frequently than
they are broken up by external pressures.’ There is disintegration when no common morality is
observed and history shows that the loosening of moral bonds is often the first stage of
disintegration, so that society is justified in taking the same steps to preserve its moral code as it
does to preserve its government and other essential institutions. Lord Devlin continues;
Morality is essential to the welfare of society.
Morality is social, not private.
It is the business of government to look after the welfare of society.
So it is legitimate for government to pass laws on the basis of preserving moral values.

3- Paternalist view (harm to self and others) proposed by Professor H.L.A Hart
The final theory is the most modern and is the Paternalistic view, harm to self and others view as
put forward by Professor Hart in the 1960s. His theory is that the law should only intervene in the
private lives of citizens to prevent harm to others and harm to oneself. He did acknowledge that
there was a difficulty in defining harm but did acknowledge that it did not include moral harm to
oneself. An existing law illustrating this theory is the law which prevent methods of prostitution.
The Paternalistic view focuses very much on the individual.
According to Hart;
‘The only freedom which deserves the name is that of pursuing our own good in our own way.’
Freedom and individuality are connected.
‘The free development of individuality is one of the leading essentials of well-being.’
Individuality and welfare are connected.
Therefore, freedom is necessary to the welfare of individuals.
Difference between law Law Morality
and morality

Source Rules and regulations Values and beliefs

Aim and objective To establish set of laws/system To discipline

Area of coverage Pervasive More into human

Obedience Strict Internal guilt

Predictability More predictable, clear Unpredictable, vague

References:

Law Justice and Morality,

https://www.lawyerssafari.com/blog/law-justice-and-morality/

The legal theory by B.N. Mani Tripathi

Studies in Jurisprudence and Legal theory by Dr. N.V. Paranjape