Conceptualizing Law and Morality.

3.6 Jurisprudence – I

Submitted By-

Ayush Gaur

(SM0117012)

Faculty in Charge

Mr. Saheb Chowdhury

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY,

ASSAM
 TABLE OF CONTENTS

1. INTRODUCTION

1.1.Research Questions
1.2.Literature Review
1.3.Scope and Objective
1.4.Research Methodology

2. CONCEPT OF LAW AND MORALITY

3. RELATIONSHIP AND SEPARATION BETWEEN LAW AND MORALITY

4. SEPERABILITY OF LAW AND MORALITY

5. CURRENT JUDICIAL TRENDS

6. CONCLUSION

BIBLIOGRAPHY

2
 CHAPTER – 1

INTRODUCTION

In Jurisprudence, Law and Morality are too vague to comprehend. The philosophies of
law and justice can’t be put in front of us in few sentences. The philosophies of these words are
too vast that even words can describe them. From the ancient Greek era to the modern era many
jurists have tried to define the philosophies of these terms but have failed. However in this
project we will define the Law and Morality. Law can be said as the rules and regulations which
has enforceability by states. Individuals who are under law have to submit themselves to the will
of state. While on the other side, Morality is like the inner conscience of individuals which tell
those individuals whether the act is morally good or morally bad. This is the best way to control
the behaviors of the individuals.

However if we see the relations between the law and moral, we hardly see any relation
between them. In the early societies there was no distinction between law and moral. The Greeks
recognized moral philosophy in the name of Natural Rights while Roman jurists in the name of
natural law formulated the theoretical moral foundation of law. In the Post reformative Europe it
was asserted the law and morality are distinct and separate and law derives its authority from
state and not from the morals. However when the natural law theories became popular in the
seventeenth and eighteenth centuries, law again became linked to the morality. In the 19th
century under the influence of positivism, only legal norms were made the subject of
jurisprudence and morals were excluded from study of law. Though Law and Morality were like
synonyms at one point of time but in the modern age both terms have significant independent
meaning which can be found in the contemporary world. In India also the ancient people also
didn’t saw any relation between the law and morality but later on the MIMANSA made
distinction between Law and Morality by creating division between the obligatory and the
recommendatory rules.

3
 CHAPTER – 2
CONCEPT OF LAW AND MORALITY

Each society that exists has a predetermined purpose, a society may be considered as a
unity which is determined by its goals and different societies are governed by their different
goals. Law of the land is the enactment of the state which has a physical coercion behind it.
There is also a fear among the individuals not to breach the law, if they did it is then punishable
by the courts. The law represents the will of the state and determines the purposes of state. In
order to secure the individuals welfare there should be an indispensable relationship between the
society and the individuals for their purposes. Therefore the law represents the political and
social relationship in the society. It determines the right and duties of individuals towards one
another and also toward the state. It is through the law that state fulfills the needs of the
individuals. The law should be according to the sociological needs of the individuals.
Laws are vital in any society as they are considered as the necessary means to attain the
goals of the state i.e. common good. In many societies the main goal of the state is that of giving
individuals liberty to live a full life. Therefore the immediate goal of the society is to attain
peace, while the ultimate common good is the life of reason for the whole community or
providing a good life. Hence the laws exist for common good and individual should follow law
as it would lead to individual perfection. A good law will always put the common good superior
to private good as law are made in taking consideration of the welfare of the whole society.
While there are some other societies where law tends to focus on the private good like in the
capitalist system.
Thus law can be defined as a specific type of social control in the organized societies
which govern the human actions. The Thomistic christian view of law is like an ordinance of
reason for common good, who has a care of the community. The human law puts common good
superior to that of the individual good.1
Law governs the external human conduct and is not concerned about the inner conscience.
An individual may have evil intentions in his mind but law does not have to do anything with it,

1 th
Haridarshan Tripathi, Specific relationship between Law and Morality, Linkedin (20 October,2018, 10:40 AM),
https://www.linkedin.com/pulse/specific-relationship-between-law-morality-haridarshan-tripathi

4
the law will only move into action when that individual harms any other person. Thus law comes
into action only when an act is been done with an evil intention.
Morality on the other hand is related to an individual’s inner conscience. It is the study of
“what we ought to do” which means what is the right thing to do and what is the wrong thing to
do. These moral concepts of right and wrong are fundamental or universal, it depends and lies in
the mind of human and unlike law state does not govern the these concepts inside the mind of the
people. The best way of controlling the behavior of individual is through morality. In Hinduism
one touches the feet of their elders there is no law behind this action but still people does this
action, so morals do prevail in the society. But it is upon a person’s opinion whether to follow
these morals or not, it is based on the personal practice. There can be some moralities which
throw a negative impact on the society and also there are some moralities which are beneficiary
to the society. The only difference here arise is that the law can be enforced by the coercion
while on the other hand morality does not have a coercive nature behind it. It is purely upon the
person’s discretion whether to act in a morally way or not. Some of the ideas that were
propagated by religion to coerce individuals to follow the moral values where that if they do not
follow such moral values, they will be punished by a superior God2. This was because in the
earlier society there was no difference between law and morals. Moral things were tend to be law
and there was no distinction between them and it also had a coercive nature attached to it.
Morality can be compared with order and it has its human action that is ordered to one another.
The concept of value (good or end) is the heart of any moral organization. Thus a moral act is
comprised of subject that makes a rational and free act and the object that is intended like value
and the objective goods that are result from this activity. The moral act are justified by some
moral norms and human also have an divine intelligence in them through which they justify their
act. This morality is in conformity with the rules and governs the human life by the rules of
reasons. Thus morality is inspired from values and this moral norm in itself is inspired from
human reason and eternal law which leads to the rational human nature. Thus morality is just
man’s approach to its goals its particular goals is the perfection of its moral and spiritual nature
and his ultimate goal is to be union with God.

2 st
Sourav Mandal, Law and Morality in India, Legal Service India (21 October, 2018 3:00 PM)
http://www.legalserviceindia.com/articles/lmor.htm

5
 CHAPTER – 3
THE RELATIONSHIP AND DISTINCTION BETWEEN LAW AND
MORALITY

The terms Law and morality were like synonyms in the early era, morals were considered
as laws which were binding upon the people and if not followed them would be punished by the
God. Though these terms have independent meanings but still there is a relationship among the
two terms.
The first is the former concept in which Morality act as a basis of law, earlier law was
based on the morals. When the state came into being, the society as being new opted for the
values that were inscribed in the morals, which were considered to be important and enforced
them. Then these moral values were known as law. The rule which were considered to be good
for peoples and were not observed continuously by the state in their present scenario called
morals. But these two by the time got separated due to the development of the people’s idea. The
second is that the morality acts as the basis of law where law is made inspired by the moral
norms of the society. There are many rules which are same for the both law and morality like
murder, theft, etc. Here the law and morals tend to be on the same page because there are many
crimes that are universally wrong which is pre-determined by an eternal law. In these areas law
and morality mix together. In the Queen v. Dudley and Stephenson, three seamen and a boy
named Richard Parker were indulged in a shipwreck, due to this shipwreck the boy went into
coma and these people where stranded in the high seas with no food and water and in order to
live they performed cannibalism on the Richard parker. After days these men were saved and a
jury sat on him. The verdict of the five judges of bench was that no man has the right to take life
of another person in order to save his own. Though they got clemency after some time but it
shows that morals are used in taking legal rules.3
However it would be abrupt to say that morals are the basis of legal rules because in the
present era law and morality can be described separately. There could be act which could be
immoral but it would not be illegal like cheating, in the paper is morally wrong but is not illegal
and also there may be act which is moral but is illegal for some people like drinking alcohol, etc.

3
(1884) 14 QBD 273 DC

6
thus morality cannot be legislated because it is purely based on the individuals will and
conscience.
In modern times there is a distinction between law and morality, it is a positivist legal
theory which was first developed by the utilitarian’s, because for Benthan law should be judged
on pleasure and pain, a justified law is that which gives maximum pleasure and least pain, in his
theory he never had a place for morality. The laws are inforced by the state wheras the morals
are followed and are purely based on the Individuals’ opinion to follow. If one does not follows
laws he will be punished accordingly but if one fails obey the moral principles laid down, he will
not liable to physical punishment rather he will be boycotted socially. Law is concerned with the
external affairs of man while morality is concerned with both external and internal affairs of
man. The law is that which is universally applicable and everyone have to follow this law while
morality is differs upon people’s opinion; different people have different standards of their
morality. Some people may think that it is immoral to eat meat and drink wine, but other people
eating such things will find it quite moral. Then there are norms which are inscribed in the Indian
tradition which people think to moral but are quite immoral, people performing such act justify
such things by saying that it is moral thing to do but others who do not indulge in suc activities
think that these are morally wrong. Here law comes to remove such norms even though people
think it to be morally sound like in the practice of Sati, people found it morally correct and
promote the wives of the deceased husband to die in the fire of her husband’s funeral. Though
this is morally justified by some people but it is against the common good. Here law interferes to
remove these kinds of so called “morally justified” immoral acts, in order to promote the
common good of individual.
Even though there are some relationship between law and moral but it does not follow
that court will follow the morality in application of state law. It will depend upon many factors
but these morals are used in the giving the legal rights and interpretation of statutes.
John Austin also talks about the separation of law and morality; he drew up distinction
between the science of jurisprudence and the science of morals or ethics. Because the science of
jurisprudence depends upon the positive laws without consideration of its efficiency and its
inefficiency. During the time of John Austin the society were stable and maintained the status
quo and Austin’s army background and his study on the Roman law confirmed his desire of an
obligatory, definite which independent of moral norms.

7
 CHAPTER – 4
THE SEPERABILITY OF LAW AND MORALITY

H. L. A. Hart is considered to be most prominent figure in the field of legal positivism was
born in United Kingdom. There are some facets of morality which inevitably becomes the part of
the legal system. Even Hart says that the development of law is influenced by the conventional
morality that has been coming from the ages and the beliefs of a particular society and is also
inspired from the moral criticism developed by the individuals. The role of morality is widely
accepted in the legal system of United States where “the ultimate criteria of legal validity
explicitly incorporate principles of justice or substantive moral values”4. Hart says that even in
United Kingdom where the parliament does not have any restrictions of power, the legislation is
done in such a way to keep intact some moral principles. Even the judicial decisions sometimes
involves choice of moral values rather than applying any single principle because when the
question on law arises the moral values does not have always the clear response to offer.
Hart is famous for its Seperability theory, in which he says that it is not a necessary truth
that morals influence laws and laws made satisfy certain demands of laws, although they have
done so earlier. One may say that influence of morals over law will falsify the seperability
theory, because morality influence some part of legal system does not mean that morals will
influence the whole legal system, it is an extremely broad claim. 5 Thus though morality has and
will affect the laws but this does not mean that there is a definite relationship between the two.
Henceforth the Seperability theory of Hart stands strong.
Further it could be said the relation between the law and the morality arises from the
concept of legal validity and Hart has mentioned that “the ultimate criteria of legal validity
explicitly incorporate principles of justice or substantive moral values” and the Thomas
Acquinas quote “that an unjust law is no law at all” contradicts the Seperability theory as it
develops an necessary relationship between the law and the moral. Nevertheless there exist some
morally wrong laws like that of slavery in the United States, Sati in India, etc. which would not
have been valid if there was an relation between the legal validity and morality. Thus there are

4 th
Dr. Kenneth Ehrenburg, The Separability of Law and Morality, Scribd (24 October,2018, 12:00AM),
https://www.scribd.com/document/291374625/The-Separability-of-Law-and-Morality
5
ibid

8
morally wrong laws that exist in some part of world, which means that there are no necessary
conditions that legal validity must include the aspect of morality. Thus the Seperability theory
remains intact.
The seperability theory provides a wider approach to law which includes all law even
those laws which may offend society’s own moral when compared to the true morality or
enlightened morality. The narrow concept is one which excludes the immoral rules from law and
the wider concept is the one which includes both moral law and immoral law. Here the narrow
concept will hinder the total study of law while with the help of the wider concept one can poit
out many complexities and moral issues in the society which can’t be done with help of narrow
concept as it would remove the iniquitous rule from law. The iniquitous law can still be
considered as obligatory but it will lead to the moral deliberations, whether to fulfill legal
obligations or to uphold morality while this would be useless in narrow concept.
The narrow concept of law is the rejection of the of separation theory and was used in the
retroactive punishment. Like in the punishment of the Nazi officials during the World War 2
under the immoral law done gave many immoral decisions. The Nuremberg trials were the
prosecution of the prominent military, political and judiciary officials who participated in the
Holocaust and other war crimes. So the punishment was justified by the narrow concept but if
the wider concept of law would be applied to them the officials then will not be punished simply
because they were under the iniquitous law and were directed by it. However they were
punished by the narrow concept and it was held that legal obligation of officials did not justify
the committing of crimes against the humanity. The Nazi officials had done immoral act but the
duty of court is to punish those who did what law forbid.

9
 CHAPTER– 5
CURRENT JUDICIAL TRENDS

In the present scenario law and morality are differently applied and have different meanings. The
values that are derived from the norms are dynamic. The recent controversy of Section 377 of
IPC, 1860, the Supreme Court decriminalized the section 377 of IPC. The section talks about
homosexuality and says carnal intercourse against the order of nature with any man; women or
animal shall be punishable. But after the judgment the consensual sex between the same genders
does not violate the Section 377, while the any kind of sexual activity with animals is still a
penal offence. This consensual sex between the same sex is unnatural thus for the majority of
society it is immoral and is not socially unacceptable. Though it was immoral but the court
permitted for the same. The consensual sex between the same genders is considered to be
unnatural because as we know the society has some kind of values that an individual have to
follow in order to live in that society peacefully. These societies tend to follow some types of
moral norms which are not meant to be broken and if these rules are broken by the individual he
is socially boycotted. Thus sex within the same gender is considered to be as an evil or immoral
thing to do and if someone does that act, that individual would be socially boycotted.

Euthanasia is also considered as a highly debatable topic in terms of law and morality.
When a person is on the death bed and is not able to do anything by himself and is completely
dependent on others for his day to day activities. Does such person have a right to die? As we
know the state provides and ensures right to life and liberty of people and is the basic thing that
every state does. So it is morally wrong to take life of an individual but here considering the
situation where the person is like a liability and will never live a life of normal healthy life, then
he should be given right to die, even it is against the moral values of the society.

In the case 6Aruna Shanbaug v. Union of India and others, the Supreme Court permitted
the euthanasia after the completion of 37 years by the lady on the bed. Thus the needs are
changing rapidly so as morals. Therefore law and morality are separable and due to rapid growth
of the society, the morals cannot stand static. According to utilitarian’s view Euthanasia is

6
(2009) 1 S.C.C. 115 (India)

10
justifiable as the utilitarians look for the highest pleasure and want to avoid the pain. So for them
an ill patient would be like a burden to the society as he is dependent on others for his survival,
he does not have a utility of his own, thus he is of no use to the society. Thus patient should be
given Euthanasia, it is also known as mercy killing as the patient in itself is in severe pain and
being cannot do anything and is dependent on others.

11
 CHAPTER - 6
CONCLUSION

In the last I would conclude by saying that I support the idea of H. L. A. Hart that law and
morality are separate. Earlier when there was no distinction but now there is a clear distinction
among the two aspects. Law is the witness and deposit of moral. Moral consideration also
influences the law making and according to the Hart through this one cannot make an
assumption that all law are influenced by the morals. The Seperability theory of H. L. A. Hart
can be debated for very long but one thing is clear that its acceptance is more helpful than its
rejection.

As this Seperability theory rejects any necessary connection between the two and at same
time it says that there is some relationship between the two. Earlier morals and laws were
synonymous and this proves the relationship between the two, as there was no law at that time.
Morals govern the actions of people because of the fear of god. Later these morals and laws got
separated away and morality can be identified without any reference to law and vice versa. It is
the famous Emmanuel kant who says that it is the law which governs external actions of the
individuals while the internal conduct of person. As morality include the inner conscience of an
individual and in such situation legislators have to carefully draft the laws with keeping in mind
the interest of whole society, which may differ from individual to individuals. Law sets rules
keeping in mind of an individual’s position, but it does not maintain the wishes of each and every
individual. As everyone has different morals from which they are governed and law cannot
govern individuals with separate laws or their morals as it would not be feasible.

12
 BIBLIOGRAPHY

 http://www.legalserviceindia.com/articles/lmor.htm
 https://www.scribd.com/document/291374625/The-Separability-of-Law-and-Morality
 https://www.linkedin.com/pulse/specific-relationship-between-law-morality-haridarshan-
tripathi

Cases:

Queen v. Dudley and Stephenson

Aruna Shanbaug v. Union of India and others

13