LAW AND MORALITY. National Law University, Delhi. From the SelectedWorks of Mubashshir Sarshar. Mubashshir Sarshar, National Law University, Delhi

Transcription

1 National Law University, Delhi From the SelectedWorks of Mubashshir Sarshar 2008 LAW AND MORALITY Mubashshir Sarshar, National Law University, Delhi Available at:

2 LAW AND MORALITY 1 National Law University, Delhi 1 Mubashshir Sarshar, Student at National Law University

3 Table of Contents 1. Introduction Research Plan Research Scheme Research Techniques for Data Collection Research Methodology Legal Positivism and Natural Law Comparison between Natural Law school and Legal Positivism Law and Morality distinguished 4 3. Conclusion 8 Bibliography

4 1 1. Introduction Initially there seemed to be no distinction between law and morality. There were passages in ancient Greek writers, which seem to suggest that the good person was the one who would do what was lawful. It were the lawgivers, in the early societies, who determined what was right and wrong. However, it was not long before thoughtful people recognised the difference between what was actually legal, or legally right according to the political authorities and what should be legal. What should be legal roughly corresponds to what is really right or just, that is, what we would call morally right. We find, for instance, a distinction between what is legally or conventionally right and what is morally right. Sometimes this is expressed as an conflict between what the gods command (i.e., what is morally right) and what the political authorities command (i.e., what is legally right). This is dramatically illustrated in Sophocles' tragedy Antigone, in which the heroine defies the decree of the king (the source of "legal right" in the circumstances) and buries her brothers (an act the audience would assume was morally right). Plato, for example, holds that knowledge of what is just or moral, and the ability to distinguish true justice or morality from what is apparently just depends on the full development and use of human reason. According to Plato, there is a very close connection between true justice or morality and human well-being or flourishing. Legal and political arrangements that depart too far from true justice should, if possible, be replaced by arrangements that better promote justice and thus well-being. However in today s context the definition of Law and Morality have to be considered differently. Law is defined as body of rules binding on the members of a community, either by statute or by consent. While, Morality comes from the Greek "mos, more," meaning "customs and habits" and 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.

5 2 1.1 Research Plan The researcher through this project intends to portray the relation between Law and Morality during the ancient period as well as in the contemporary context. In order to reach the conclusion i.e. to form a relation between the two, the researcher would like to give a brief overview of these two aspects in the introduction, then go on to explain the two schools of law, i.e. Legal positivism and Natural Law School which are relevant in this context. Further, the researcher would compare the thoughts of both these schools and lastly go on to distinguish the principles of Law and Morality intensely. 1.2 Research scheme The research scheme undertaken by the researcher would comprises of doing a doctrinal study of the books available at the library of the National Law University, Delhi and besides that the researcher would take the help of the internet to look into some of the articles relating to law and morality. 1.3 Research Techniques for Data Collection Research technique of analysis, critique, and review of the theories would be intended to be employed. 1.4 Research Methodology The researcher has followed the doctrinal method of research throughout the project and the MLA system of formatting has been adopted by him.

6 3 2.1 Legal Positivism and Natural Law In order to understand the concept of Law and Morality, there is a requirement to describe the tenets of the two main schools of law. 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, posited, 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. 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.

7 4 2.2 Comparison between Natural Law school and Legal Positivism 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 a indirect help with two contemporary problems, namely, the abuse of power and the abuse of liberty. 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 manmade 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. 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. 2.3 Law and Morality distinguished The main focus of this project is law and morality, so let us intrinsically understand the meaning of these two concepts deeply. 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

8 5 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 preaching of morals start from the very basic unit of our society i.e. family. 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 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. The researcher would prove this point of his by the following example of the contemporary society. Today in our present society, morality and religion are facing challenges put forward by technology, fast urban life, secularism, equality before law, democracy, and constitutionalism. 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.

9 6 The great jurists assert that force is necessary to control human behaviour because humanity as a whole is not governed by reason. If everyone thinks reasonably and acts rationally there is no need of binding one's behaviour. But the experiences in history do not provide clear evidence of such rational behaviour and so the idea of law has developed on the assumption that it is necessary to compel the behaviour of individuals in a particular direction to achieve certain specific ends. Justice and conscience seem to be personal and individualistic. Hence there can not be system attached within any order. Therefore one recognizes, at any point in the history of any social organization, a legal system but one fails to locate such a system of justice or morality. Most probably, because justice and conscienceless are experiences and intuitions of the mind. We cannot think of an external system to regulate the activities of the mind. On the contrary, human behaviour, in its rudimentary nature is physical and superficial. And so a legal system can find a methodology of directing it or guiding it or even governing it. Therefore a legal system having rules and regulations with regard to trade, commerce, finance and employment will be greatly successful because the writer thinks, there are the areas in which human behaviour is physically; desirable. In these areas an external force, law is such an external force, a system in more comprehensively physical. Moreover the external element of deciding, adjudication, administration or even policing is possible. On the other hand, the definition of morality or the concept of morality changes from person to person. May be what is morality for me, that is not moral for you. For e.g. the viewing of porn sites in the scenario of the society existing in Indian subcontinent is not considered to be a moral act, but the viewing of the same porn site is considered to be a legible and conveniently acceptable in European and American societies. If we look at the form and content of law, we find that a legal norm may be common with that of religious and moral norm. 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. Then the question arises that, if it is so, then what is the difference between law and morality?

10 7 The answer is that, the legal system is distinct from religion and morality in the form and not in the content. 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. However, 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. The greatest examples are the world's biggest democracies. Being more specific and illustrative, the researcher 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 religio us morality. 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. Therefore, we summerise 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.

11 8 (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. (6) Law can be a public expression of morality which codifies in a public way the basic principles of conduct which a society accepts. In that way it can guide the educators of the next generation by giving them a clear outline of the values society wants taught to its children. 3. Conclusion Therefore, in the researcher s opinion there can never be a universal formula which could determine that law should 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 steal, 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 moraliy

12 Bibliography R.M. Dworkin(ed) THE PHILOSOPHY OF A LAW, Oxford University Press, London, Positivism and separation of law and morals ( ) 71 Harvard Law Review, p 601 n

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