PHILOSOPHICAL ASPECTS OF LAW AND THE MORAL LAW

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2 120 PHILOSOPHICAL ASPECTS OF LAW AND THE / MORAL LAW INTRODUCTION NO DISTINCTION IN ANCIENT TIMES In the early sages of the society there was no distinction between law and morals. In Hindu law, the prime sources of which are the vedas and the smritis, we do not find such distinction in the beginning. However, later on, Mimansa laid down certain principles to distinguish obligatory from recommendatory injunctions. In the west also the position was similar. The Greeks in the name of the doctrine of "natural rights" formulated a theoretical moral foundation of law. The Roman jurists in the name of "natural law" recognized certain moral principles as the basis of law. In the middle ages the church became dominant in Europe. The "natural law" was given a theological basis and Christian morals were considered as the basis of law. A DISTINCTION DRAWN IN POST-REFORMATION EUROPE; MODERN TRENDS In the post-reformation Europe "when the yoke of the church was thrown off' it was asserted that law and morals are distinct and separate, and law derives its authority from the state and not from the morals. Morals have their source in the religion or conscience. However, in the 17th and 18lh centuries "natural law" theories became very popular and more or less, they had a moral foundation. Law again came to be linked with morals. Again there came a reaction. In the 19th century AUSTIN propounded his theory that the law has nothing to do with the morals. He defined law as the command of the sovereign. He further said that it was law "command" alone which is subject-matter of jurisprudence. Morals are not a subject-matter of study for jurisprudence. Many later jurists supported the view of AUSTIN. In the 20th century KELSEN said that only the legal norms are the subject-matter of jurisprudence. He excluded all other extraneous things including the morals from the study of law. There is change in the trend of thought in modern times. The sociological approach to law indirectly studies morals also. Though they always make a distinction between law and morals and consider the former a the proper subject-matter of study, in tracing the origin, development, function and ends of law they make a study of the

3 forces which influence it. Thus, their field of study extends to the various social sciences including morals. INDIA As observed earlier, the ancient Hindu jurists did not make any distinction between law and morals. Later on, in actual practice some distinction started to be observed. The MIMANSA made a distinction between obligatory and recommendatory rules. By the time the commentaries were written the distinction was clearly established in theory also. The commentators pointed out the distinction and in many cases dropped those rules which were based purely on morals. The doctrine of "factum valet" was recognized which means that an act which is in contravention of some moral injunction, if accomplished in fact, should be considered valid. However, this rule does not apply to legal injunctions. In modern times, the privy council in its decisions always made a distinction between legal and moral injunctions. Now there is no longer any confusion between law and morals and when the law is gradually being codified, there are little chances of such a confusion. The legal positivism of AUSTIN which based law solely on the coercive power of the state and SAVIGNY s over-emphasis on past values and traditions had virtually brought the development of legal reforms to a complete halt. Therefore, jurists from Germany and France looked for a legal philosophy which could prevent stagnation of law and create conditions favourable to its steady growth so as to meet the complexities of the contemporary society. It was realized that law, in order to command respect form the society, must have an element of ethical value so that it may achieve the ideals for which it was meant. This resulted into emergence of a new school of thought which has been called as the ethical/ moral or philosophical school of jurisprudence. MORAL/ ETHICAL LEGAL PHILOSOPHY Legal philosophy must be based on ethical values so as to motivate people for an upright living. Since the science of ethics deals with the principles of morality which moulds man s conduct enabling him to distinguish between right and wrong and respect the rights of order in order to maintain social harmony. The purpose of law is to maintain justice and order in society and legal restrictions can be justified only if

4 122 they promote the freedom of individuals in society. The ethical view of jurisprudence expounds the principle of law as it is ought to be It is neither concerned with the historical past nor with the analytical present, but with the future of law as it ought to be The main features of the ethical jurisprudence may briefly be stated as follow: 1) The concept of justice has a philosophical or ethical content and law and justice are closely inter-related concepts. Law is a means to attain the ends of justice. Thus law is only an instrument towards the fulfillment of the objective of justice. 2) The ethical view of jurisprudence concerns itself with the manner in which the law fulfils its purpose of attainment of justice. 3) The study of difference between the spheres of law and justice. 4) The ethical significance of legal conceptions. The ethical or philosophical view considers law as the means by which individual s will is harmonized with the general will of the community. The proximate object of jurisprudence is to secure liberty to the individual for the attainment of human perfection. Thus, liberty is one of the essential pre-requsites for the perfection of the human personality. It is in this sense that philosophical jurisprudence became the common ground of moral and legal philosophy, and of ethics and jurisprudence. HUGO GROTIUS, KANT, HEGEL AND SEBELLIGN are considered as the main exponents of the ethical or philosophical jurisprudence, EXPONENTS OF PHILOSOPHICAL/ ETHICAL JURISPRUDENCE HUGO GROTIUS ( ) HUGO GROTIUS was Dutch national and a republican philosopher. In the famous works "The Law of War and Peace". GROTIUS has stated that natural law springs from the social nature of man and the natural law as well as positive morality, both are based on the notion of righteousness. Natural justice is the justice in deed and truth. The rules of human conduct emerge from right reason and, therefore, they receive public support of the community. The real sanction behind these rules is not the coercive force of the state but the censure of public disapprobation.

5 123 IMMANUEL KANT KANT developed the metaphysical method still further and held that ethics and law are not one and the same thing. According to him, ethics relates to man's spontaneous acts while law deals with all those acts to which a man can be compelled. Ethics thus deals with the inner life of the individual, law on the other hand, regulates his external conducts. KANT emphatically pointed out that an organized society should not exercise compulsion to make man virtuous, but compulsion should be exercised only to regulate his external conduct. In his view, "Law is the sum total of the conditions under which the personal wishes of man can be reconciled with the personal wishes of another man in accordance with a general law of freedom" KANT, in his "Critique of Pure Reason" tried to draw a distinction between form and matter. He observed that "the impressions of our senses are the matter of human experience which are brought into order and shaped by human mind. Emotions become perceptions through the forms of space and time, perceptions became experience through the categories or understanding such as substance and causality, quality and quantity the judgment o f experience are linked with each other by general principles". Human mind does not necessarily follow the necessity as it has a free will. According to him, the freedom of man to act according to his will and the ethical postulates are mutually co-relative because no ethical postulate is possible without man's freedom of self-determination. KANT calls substance of ethical postulate as 'categorical imperative" which is the basis of his moral and legal theory. KANT S DOCTRINE OF CATEGORICAL IMPERATIVE/ KANT S CONCEPT OF THE MORAL LAW In KANT s opinion, moral law is a categorical imperative. There is no law or authority over it. A duty is always a duty, and duty is obligatory. It should be done anyway. Moral laws are universal. The originate only in the real essence of the doer. Their basis is the very moral nature of man. Other objects are good in a limited way because their importance is only in special circumstances but good will is good regardless of the circumstance in view of its propriety being independent of the result. Good will is the ultimate good and good will is rational will.

6 124 Thus, acts in harmony with the moral law are good in themselves. Actions done with desires and feelings are immoral, it being of no consequence that the desires are pure and the feelings the highest. Moral quality is an integral quality. It is KANT s dictum to do your duty, be the result what is will. Moral laws are not qualified by experience. They are not relative to circumstances. In KANT s opinion, if it is a moral duty to tell the truth then every' person should tell the truth in every circumstance. In the Mahabharat war, the life perpetrated by Yudhisthira and conveyed to Dronacharya would have been an extremely immoral act in KANT s opinion. Moral laws cannot be violated in any circumstances whatsoever. Elaborating his concept of "categorical imperative" KANT stated that "a man should act in such a way that his maximum actions could be made the maximum of a general action". But he distinguished morality from law and contended that morality is a matter of internal motives of the individual whereas legality is a matter of action in conformity with an external standard set by the law. Thus, his legal theory is basically modelled on what the law ought to be. KANT deduced the definition of law from his categorized imperative and observed, "law is the aggregate of the conditions under which the arbitrary will of one individual may be combined with that of another under a general inclusive law of freedom"1. Thus, KANT considered "compulsion" as an element of law and a right is nothing but a power to compel. He believed that equality is an implied condition of freedom and the right to property is an expression of personality of man MORAL JUDGMENT IS AN UNQUALIFIED JUDGMENT KANT had absolute faith in the value of ethics. Moral laws are the orders of reason while other laws are inspired by the desires. Law s inspired merely by desires are no more than hypothetical imperatives. They are dependent upon external result and circumstances. Law of a sensual life contradicts the rational laws. External goal can only be hypothetical imperative. For example, earning wealth cannot be an unqualified command because it depends upon the situation, need and ability of the individuals. But on the contrary, moral laws being rational laws, are categorical KANT. Philosophy of Law (Hastic's translation) P.46

7 125 imperatives. They have no scope for any exceptions and they must be satisfied in all circumstances. Therefore they are categorical imperatives. Other laws are based on experience. Moral law is "a-priori. They are related not to what" but to ought". They are axiological and not factual. KANT pointed out that law, to be acceptable to people in general should have within it an element of justness. According to him legislation could be effective only when it represents the united will of the people. He upheld freedom of speech as a prerequisite of a good government. As regards the function of the state, KANT asserted that it should confine itself to maintenance of law and order and administration of justice. The citizens should have the freedom of criticizing the government but they should never seek to resist it. He believed in the universal world order and equality and freedom of states. He, however, wanted the international law. to be effective, must have an international authority superior to the member states. FICHTE FICHTE, deduced his legal theory from the inherent self-consciousness of a reasonable man. He contended that freedom is necessarily and relative term depending on mutual personal relations which regulate human conduct. It is the moral duty of every person to respect the liberty of others, but a legal duty to do is dependent on reciprocity. According to FICHTE, the state should protect only those rights of individual which are necessary conditions of his personal existence. The law must be directed to ensure justice. As to the relation between individual and state, FICHTE pointed out that it is regulated by three basic principles, namely, 1) An individual becomes a member of the state through fulfillment of civic duties; 2) The law limits and assures the rights of the individuals; and 3) Outside his sphere of civic duties, an individual is free and only responsible to himself.

8 126 HEGEL ( ) HEGEL carried further the KANT s doctrine of freedom of will. In his opinion, the purpose of making laws is to reconcile the conflicting egos in society. This is achieved by the merger of self-centred consciousness of each ego resulting into universal consciousness. In other words legal right is the objective realization of the tact that the freedom of each ego is limited by like freedom of other s egos. Thus, HEGEL believed that various manifestations of social life including law are nothing but the result of an evolutionary dynamic process. He opines that the idea of freedom has dominated man s mind throughout the struggle for existence. Man has successfully struggled for freedom for the bondage of the church which gave him temporal freedom, his resistance to tyrannical rule gave him legal governments and fight against economic enslavement brought him economic freedom. Thus the society has always been changing and so has the law to meet the exigencies of time. All laws, therefore, must conform to dynamic changes in society for the purposeful attainment of human perfection. According to HEGEL the state is the synthesis of family and civil society. It is a unity of the universal principle of family and the particular principle of civil society. It is thus an expression of the individual s freedom in the form of universal self. He emphasized three functions of the state, namely, 1) The universal, 2) The particular, and 3) The individual The universal functions consists of formulation by laws, its particular function includes application of law to special cases while the individual aspect is embodied in the monarch. Thus HEGEL is opposed to the democratic state and universal franchise. According to him, the state is not the embodiment of the common will or the will of the majority, but of the rational will. Monarch being an embodiment of the individual function of the state, hereditary monarchy is justified as a philosophical necessity.

9 127 HEGEL's most important contribution to legal philosophy is the development of the idea of evolution. He contended that various manifestations of social life, including law, are the product of an evolutionary, dynamic process. This process takes on a dialectical form, revealing itself in thesis, antithesis and synthesis. The human spirit sets a thesis which becomes current as the leading idea of a particular historical epoch. In due course, against this thesis, an antithesis is set up and from the ensuing conflict a synthesis develops which, absorbing elements of both, reconciles them on a higher plane. This process repeats itself time and again in history. HEGEL believed that legal history embodies within it, the march of freedom in civil societies. Thus, bondage of the Church gave rise to temporal freedom, tyrannical rule of despotic monarches gave way to legal governments and economic enslavement under capitalism has given way to economic freedom. In this way society may change and so also the law, with the evolution of the concept of freedom, the ultimate object being to raise humanity to perfection in a given legal order. SCBELLING ( ) SCBELLING advocated the view that law is a means by which the individual will be harmonized with the general will of the community. Law achieves this harmony by delimiting the sphere of freedom available to each individual. It may be stated that the main thrust of the legal philosophy of KANT, FICHTE, HEGEL and SCBELLING has been firstly, on jurisprudence as a means of attainment of human perfection and secondly, to secure liberty to individuals in the society. These legal thinkers considered liberty as the first pre-requisite for the development of human personality. The legal theory propounded by KANT stands somewhere between rationalist natural law theories of 17th and 18th century and liberalism of the 19th century. The legal philosophy of FICHTE was carried further by VACCHIO in the 20th century and gave encouragement to modern fascism. The legal philosophy advanced by HEGAL had mixed reaction from contemporary jurists. His ideas were greatly admired by some jurists while others condemned them as extremely dangerous philosophy of his time. Hegelian views regarding relationship between state and individual and the purpose of legal theory have been

10 128 greatly appreciated by many writers. But there are others who condemn him as one of the greatest and most dangerous "dilettantes in legal philosophy". The historical school under the patronage of SAVIGNY attached the views propagated by the philosophical school that law is made consciously by human reason embodied in legislation and asserted that law is in fact the product of Voikgeist i.e. the people's genius expressing itself in the form of custom or traditions. The chief defect of the philosophical theory of law lay in the assumption that an ideal law is discoverable by reason and the actual system of law should correspond to this reason based law. The ideology of the philosophical school was therefore, not tenable. KOHLER ( ) KOHLER was much influenced by the Hegelian legal theory. He conceded to the HEGEL s idea of universal civilization but he did not agree with the view that there is an eternal law or universal body of legal institutions uniformity suited to all the societies. What may be good for one particular society may be necessarily so for the other. He emphasised that human society is ever changing and progressing and law is a means to respond favourably to these changes. KOHLER defined law as "the standard oj conduct which in consequence of the inner impulse that urges man towards a reasonable jorm of life, emanates from the whole, and is forced upon the individual". In his book "Philosophy of Law" KOHLER contemplates, vitalising of culture or civilization and this end is achieved through the instrumentality of law. KOHLER'S views about law and legal philosophy have been appreciated by DEAN ROSCOE POUND who observed, "formulation of jural postulates of the time and * I place is one of the most important achievements of recent legal science". This is indeed a significant contribution of KOHLER to the development of jurisprudential thinking. 1 ROSCOE POUND: Interpretations of Legal History, P.150

11 129 STAMMLER ( ) STAMMLER was a Neo-Kantian. He held a view that the two legal systems, namely, 1) historical and 2) philosophical, despite all their differences in rules and principles, could work together in fulfilment of the social ideal. He advocated an alternative theory of law and opined that apart from positive law which was investigative, there is need for a just law1. According to him law is "just" if it furthers social ideal i.e. harmonies individual interest with those of society. There are obviously two prerequisites for fulfilment of this social ideal. Firstly, it is necessary to maintain proper interest of each individual, and secondly, social co-operation must be ensured among them. STAMMLER's views regarding legal theory are expressed in "The Theory of Law" wherein he wrote, "there is not a single rule of law the positive content of which can be fixed, a priori". He, however, believed that a theory of "just" law may well be developed simultaneously with the theory of analytical positivism which is investigative in character. According to STAMMLER, a law is just if it conforms as the social ideal of harmonizing the interests of the individual with that of the society's ideas. The social ideal represents the unity of individual purposes. According to STAMMLER law is a volition. In other words, it relates to willingness of the persons for whom it is made. It is a mode of ordering human acts according to the relation of means and purposes. Sovereignty distinguishes law from arbitrary volition of an individual. He tried to provide law a scientific footing by emphasizing that just" law is the highest universal point in every aspect of the social life of man. The contribution of STAMMLER to the jurisprudential theory has been summed up by Dr.FRIEDMANN in the following words: "STAMMLER was torn between his desire as a philosopher to establish a universal science of law and his desire as a teacher of civil law to help in the solution of actual cases. The result was an 'ideal of justice' which is hybrid between a formal proposition and a definition of social ideal, kept abstract and rather vague by the ' STAMMLER : The Theory of Justice, P.90

12 130 desire to remain formal. STAMMLER produces solutions dependent on their specific social and ethical valuations which it was his endeavour to keep out of an idea meant to be universal. His solutions were based on certain assumptions and those were the recognition of private properly subject to certain limitations regarding its use and equivalence of all uses of property regardless of their economic and social importance". STAMMLER's legal philosophy was later supported by Italian jurist DEL VECCHIO who believed that positive law was an obstacle in the process of legal reforms. DEL VECCHIO DEL VECCHIO developed a theory of law similar to STAMMLER's legal philosophy but quite independent of it. He was a great legal thinker of Italy and his writings were known for his deep knowledge of philosophy, law and history. He believed that human mind can discover rules of justice unaided by positive law. He was thus convinced about the existence of the natural law and treated positive law as an inroad to the process of legal reforms. In his view, the logical form of law was more comprehensive than the sum of judicial propositions. The concept of law carries with it an element of neutrality and therefore it is not proper to draw a distinction between good and bad law or just and unjust law. DEL VECCHIO treated law as a phenomenon of nature and an expression of human liberty directed towards a definite purpose. For him, justice is an ideal concept postulated by the inner conscience of man and a quest for equal freedom of mankind1. It is significant to note that the earlier legal philosophy of DEL VECCHIO reflects the influence of KANT and FICHTE's writings on him but his later work on relation between individual and state shows that he was also influenced by Hegelian legal philosophy. Some of the jurists, notably, BRUNS ( ) were also inspired by the views of the philosophical jurists and laid greater emphasis on the human and universal DEL VECCHIO : Formal Bases of Law. P.322

13 131 character of law which led to the development of a new legal philosophy "which no longer regards as its task the discovery of an absolute law of nature, but only seeks to recognize in their universality and necessity, the general conceptions and ideas which attain concrete historical manifestation in the single national system of law". This led to socio-legal approach to law in subsequent years. GUEIST ( ) GUEIST supported SAVIGNY's theory of law but differed from him and held that fuller development of legal science was possible by the re-statement of the natural law doctrines in the changed socio-legal context. The contribution of philosophical school of jurisprudence to the development of legal theory has been assessed by W1NDSCHILD ( ) who observed that the antithesis of philosophical and historical jurists has disappeared since each of them have appreciated the correctness of the main tenets of the other, thus paving way to evolution of synthetic juristic philosophy in later time. The cumulative effect of the legal philosophies developed by historical and ethical jurists and the impact of analytical positivism of AUSTIN, generated a new wave of thinking about the true nature, context and purpose of law and its relation with the state. Analytical school had ignored the social aspect of law and denounced its ethical basis. Instead, it emphasized only on two aspects of law, namely, i) Its coercive force, and ii) Omnipotence of the sovereign authority Commenting adversely on rigid approach of analytical positivists to law, Professor ROBSON APTLY remarked that since BENTHAM's time English legal thought has * become unduly narrow and devoid of imagination, it hardly gives any place to philosophy, ethics or sociology in the formulation of laws.1 It was JETHRO BROWN who was a Neo-Austinian, gave a new content to AUSTIN'S definition of law. He interpreted law, "as an expression of the general will 1 ROBSON Civilization and the Growth of Law, P.254

14 132 affirming an order which will be enforced by the organized might of the state and directed to the realization of some real or imaginary good"1. Thus, he gave an ethical element to the definition of law which AUSTIN had ruthlessly denied. JETHRO BROWN conceived that law is not merely a command of the sovereign but it proceeds from the general will of the people and thus contains within it an element of socio-ethicai purpose. SALMOND also contended that customary law is material source of law and that international law is not a mere positive morality but it is a specie of conventional law. it is, therefore, evident that he also acknowledged the role of historical and philosophical legal thinking in the formulation of law and legal precepts. SALMOND further remarked that a book of ethical jurisprudence may concern itself with all or any of the matters including the concept of law, the relation of law and justice, the manner in which law fulfils its purpose of maintaining justice, the distinction between the sphere of law and the subject-matter of law and other branches of right, and the ethical significance and validity of those legal concepts and principles, which are fundamental for the proper subject-matter of analytical jurisprudence. He pointed out that the scope of ethical jurisprudence does not extend beyond general theory of justice in relation to law and the matters such criticism of the actual legal system, or contemplation of an ideal legal system, etc. pertain neither within the scope of jurisprudence, nor to legal philosophy but to the science of legislation. It may be concluded that philosophical school of jurisprudence is mainly interested in the, "development of the idea of justice as a ethical and moral phenomenon and its manifestation in the principles applied by the courts". Though the doctrinal preachings of the three main exponents of philosophical school, namely, KANT, FICHTE and HEGEL exercised great influence on European legal philosophy; they did not produce a new school of jurisprudence as such. The reason being that their legal philosophy partly emanated from natural law theories and partly form the analytical positivism. Therefore, there was a decline in the philosophical school when the historical school gained momentum. ' JETHRO BROWN : Austinian Theory of Law : Excursions P.537

15 PROFESSOR LON LUVOIS FULLER ( ) Professor LON L. FULLER is a renowned contemporary jurist of new natural law in the twentieth century. He taught in the universities of Oregon, Illinois and Duke and joined in 1940 Harvard law school and from 1947 till death in 1978 he was Carter Professor of General Jurisprudence. His famous works on legal philosophy include - the law in Quest of Itself (1940) and the Morality of Law (1964) beside many research articles especially positivism1 and fidelity to law - a reply to Professor Hart. In his the Law in Quest of Itself, Professor FULLER makes an excellent exposition and analysis of the two main trends in legal philosophy described as legal positivism and natural law and denies that there can be rigid separation between is and ought". "The morality of law is a significant in the history of legal philosophy which contains insights into relation, between law and morality. RESURGENCE OF NATURAL LAW - FULLER As already observed FULLER makes attempts to argue against the separation of law and morals. In his Morality of Law - FULLER expounded the nature of morality and the theory of law and the relationship between law and morality. dl N-1 rure OF Morality According to FULLER morality" has many uses and several meaning as it is and morality as sought to be. He attempts to make a distinction between "the morality of duty" and "the morality of aspiration" which in other words can be described as "moral duties and "moral ideals". He further divides moral duties into affirmative actions and torbearnaces understood as moral duties and moral prohibitions or "affirmative and negative duties". These further breakdown into the basic sub-categories: i) Personal virtues e.g. courage & ii) Social ends, e.g. justice ' HART. The Concept of Law, PP (1972)

16 134 Si Morality of Aspiration FULLER makes distinction between morality of duty and morality of aspiration. According to him morality of duty embodies the most obvious demands of social living which means basic requirements of social living whereas morality of aspiration is the morality of good life, of excellence, of Jiillesl realization of human powers". Such obvious demands of social living may be duly not to engage in various sex activity. Such duties ought to be considered "obvious demands of social living. Secondly, he contrasts between morality of duty and morality of aspiration. Morality of aspiration is that we do not praise men for doing their duties but we do praise them for moral excellence, e.g. Z an expert swimmer saving a drowning child from a swimming pool; X, who is chronically ill continue to work to support his family or Y, a young damsel sacrifices her social life for her aged and widowed father. In each of these examples there is something to praise and something to aspire to. Yet in each there is performance of duty. Third, morality of duty generally requires only forbearance while morality of aspiration is in some sense of affirmative. Furthermore, morality of aspiration for some persons consists very largely a life of abstinence. The fourth difference between the two is that morality of duty can be enforced more or less by law whereas morality of aspiration cannot. And, fifthly, according to FULLER moral duties are sticky " and inflexible while it is the nature of al human aspirations towards perfection to be liable and responsive to changing conditions, etc.. Such a distinction between the two moralities is further multiplied by FULLER. However, the utility of the distinction between moral and duties and morality of aspiration is useful as it provides a partial inventory of elements of law and is helpful in understanding comparison between law and morality. * FULLER : NATURE AND CONCEPT OF LAW According to Prof. FULLER, law or legal system is not to be studied as a data or a natural fact. It is rather an activity that is the product of sustained purposive effort". He, therefore, regards law as a purposive system and its particular purpose being that subjecting human conduct to the control and guidance of legal rules. In him law is

17 135 the enterprise of subjecting human conduct to the governance of rules, FULLER lays down eight requirements on "inner morality" of law which legal system must comply if it is to succeed as law. Conversely speaking, FULLER illustrates eight ways to fail to make law". These eight principles are not conceived as maxims of substantive natural law. They are instead seen as a kind of "procedural natural law. They are... ' 1) There must be rules no adhocism ", 2) The rules must be publicized, 3) Retrospective legislation must not be used abusively, 4) The rules must be understandable, 5) The rules must not be contradictory, 6) The rules must not require conduct beyond the power of the affected parties, 7) The rules must not be changed so frequently that the subject cannot guide is actions by them, and 8) There must be congruence between the rules as announced and their actual administration. A ruler, says FULLER, who tried to subject human conduct to be governance of rules but failed to fulfil these conditions would fail in his purpose. Hence, the fulfillment of all these conditions is necessary to subject rule of law to these demanding process of law. These conditions constitute what FULLER calls the inner morality of law and are a procedural version of new natural law. JOHN AUSTIN ( ) AUSTIN is popularly credited for founding analytical positivism in legal theory and for this he is styled as Father of English Jurisprudence. Some knowledge of his biographical background is therefore, necessary in order to understand his attitude and philosophy concerning law. AUSTIN - SEPARATION OF LAW AND MORALS RATIONALE The major postulate of Austinian positivism is based on one rigid separation between law and moral words. "AUSTIN drew sharp distinction between science of jurisprudence and science of legislation or ethics. The former is concerned with positive laws irrespective of their goodness or badness. It studies law as it is or as it

18 136 exists which the people are obliged to obey. AMOS says that "AUSTIN by establishing distinction between positive law and morals not only laid the foundation for science of taw, but cleared the conception oj law...positive laws, as AUSTIN has shown, must be legally binding, yet a law may be unjust". The rationale of AUSTIN to separate law and morals was necessitated due to exigencies of time. The Austinian times were more or less comparatively stable and peaceful appropriately served the needs of times in order to preserve peace and "status quo" in society. AUSTIN S army background and study of Roman law in Germany further confirmed his desire of an obligatory, clear and definite law independent of moral and ethical values. He, therefore, found the system of law logical, coercive and enforceable distinct from ideal systems or law which should be. The substance of this system of law appears to be moral akin to penal law or criminal awl which mostly contain "do s" and "don ts in the form of orders, or commands to be obeyed through acts of omission or commission. Strict adherence to such penal rules do not entitle any moral or ethical consideration. Further stipulation of sanction gives punch to the system and is the essence of AUSTIN S nature of law. According to AUSTIN, the notion of command is "the key to the science of jurisprudence and morals, In this way AUSTIN divorced moral and abstract assumptions and immunized his positive law from extra-legal considerations have no reference to public good, public morals and public policy. In short, his positivistic law responded to the needs of individualistic and capitalist society perfecting coercive powers of the state by isolating from actual social relations. PROFESSOR HERBERT LIONEL ADOLPHUS HART (1907) Professor HERBERT LIONEL ADOLPHUS HART is the principal of Brasenose College, Oxford. He practiced at the chancery bar and then became professor of jurisprudence at Oxford before his appointment at Brasenose college. He is the author of "The Concept of Law (1961), Law, Liberty and Morality (1963), The Morality of the Criminal Law (1965). Punishment and Responsibility (1967) and with A.M. Honore, "Causation in the Law (1959).

19 137 LAW AND MORALITY - CO-EXIST Morality is implicit in HART s system of law which he describes as union of primary and secondary rules. These rules being normative in character set a standard of behaviour that obligates subjects for acceptance and observance of such rules beyond the threat that may enforce it. Being as members of the society or groups they feel to abide by the rule both as matter of duty and obligation. There are several conjunctions in HART s system of law where law and morality co-exist, overlapping and are even complimentary and supplementary in nature. The customary nature of primary rules, the nature of secondary rules of change introduced to supplement the primary rules to bring about change in the primary rules to meet requirements of society and limited discretion to judges where rules of recognition provide no guidance to judges to decide are some of the areas where HART concedes decisive influence of morality on law. Moreover, his rejection of law as a gun-man situation further implies the inseparable character of relationship between law and morality. Indeed in his positivism there is perceptible impact of natural law which signify HART s infusion of higher law. In fact, HART s positivism has scope for natural law as well as morality which has made him both a positivist as well as naturalist. According to HART the minimum content of natural law is shared by both law and morals. He further attempts to distinguish morality from law, custom, etiquette, and other kinds of social rules. It is four features of morality which, HART says, are necessary for a clear picture of his concept of law. These four features, he describes1, under the heads of Importance, Immunity from deliberate change, Voluntary character of moral offences, and Forms of moral pressure 11 Importance * An essential feature of any moral rule or standard is that it is regarded as something of great importance. It cannot be omitted in any faithful account of the morality of any social group or individual nor can it be made more precise. 1 The Concept of Law. PP

20 138 This is evident in several ways, namely, i) First, moral standards are maintained against the drive of strong passions which they restrict; ii) Secondly, in serious forms of social pressure exerted not only to obtain conformity in individual cases but to secure that moral standards are taught or communicated as a matter of course to all in society. iii) Thirdly, if the moral standards were not generally accepted for reaching and distasteful changes in the life of the individuals would occur. For instance, says HART the most prominent part of the morality of any society consists of the rules concerning sexual behaviour and it is far from clear that the importance attached to them is connected with the belief that the conduct they forbid is harmful to others. Even in the so-called modern societies sexual morality is most prominent aspect of what ordinary men think of morality. Hi Immunity from Deliberate Change It is a characteristic of a legal system that new legal rules can be introduced and old ones changed or replaced by deliberate enactment. By contract moral rules or principles cannot be brought into being or changed or eliminated in this way. in) Voluntary Character of Moral Offence Moral responsibility or blame is a matter of internal matter while law is generally concerned with external" behaviour mens rea" playing an important part in criminal responsibility. If a particular person has offended * against moral rules or offences and succeeds in establishing that he did this unintentionally he is excused from moral responsibility and to blame him in these circumstances would itself be considered morally objectionable. n'j The form of Moral Pressure A further distinguishing feature of morality is the characteristic form of moral pressure which is exerted in its support. While the typical form of legal

21 139 pressure may consist in physical punishment or unpleasant consequences with morals on the other hand typical form of pressure consists in appeals to the respect of rules and of the demands for morality appeal to conscience. LEGAL PHILOSOPHY OF LAW AND MORALITY Writers like AUS1TN, KELSEN and others have tried to make a clear distinction between law and morality although the two are bound to be affected by each other. The whole of life of man cannot be regulated by law alone and the same is true of morality. Law is concerned with the external actions of individuals and morality with their inner conscience. According to ARNDTS, "there are four points of difference. 1) In law man is considered as a person, that is because he has a free will; in morals we have to do with determining the will towards the good; 2) Law considers man only in so far as he lives in community other others; morals give a guide to lead him even if he were alone; 3) Law has to do with acts in so jar as they operated externally; morals look to the intention - the inner determination and direction of the will; 4) Law governs the will so far as it may be external coercion; morals seek a free self - determination towards the good." According to PATON, "morals or ethics is a study of the supreme good. Law lays down what is convenient for that time and place; ethics concentrates on the individual rather than society; law is concerned with the social relationship of man rather than the individual excellence of their character; ethics considers motive all-important; law insists merely by conduct with certain standards and seldom worries for motive. 4 But it is loo narrow to say (hat ethics deals only with the individual or that ethics treats only of the interior and law only o] the exterior, for ethics in judging acts must consider the consequences that flow jrom them. Moreover, ethics duties of man cannot be considered without considering his obligation to his fellows or his place in society".

22 140 According to VINOGRADOFF, "law is clearly distinguishable from morality. The object of law is the submission of the individual to the will of organized society while the tendency of morality is to subject the individual to the dictates of his own conscience". According to POLLOK, "though much ground is common to both, the subject-matter of law and ethics is not the same. The field of legal rules of conduct does not coincide with that of moral rules and is not included in it and the purposes for which they exist are different". According to DUGUIT, "law has its basis in social conduct. Morals go on intrinsic value of conduct. Hence it is vain to talk about law and morals. The legal criterion is not an ethical criterion." According to CAPITANT, "social organization rests equally on law and morals. The precepts of both are obligatory; those of law are enforced by public authority; those of morals are addressed only to the individual conscience". According to LONGO, "ethics is the common foundation Morals regard man with respect to his ultimate destiny; law regards him with respect to conditionally good in an external social relation". According to KORKUNOV, "the distinction between morals and law can be formulated very simply. Morality furnishes the criterion for the proper evaluation of our interests; law marks out the limits within which they ought to be confined". According to POUND, "law and morals have a common origin but they diverge in their development". * According to BENTHAM, "in a word, law has just the same centre as morals but it has by no means the same circumference". According to PATON, "since law exists to harmonize the purpose of individuals, law itself strives towards justice

23 141 According to another writer, "law does not aim at perfecting the individual character of man; but at regulating the relations of the citizens. The office of law does not extend to that which lies in the thought and conscience of the individual. The possible coincidence of law and morality are limited by external morality, 'thou shalt not steal' may be and is legal as well as moral, the commandment 'thou shalt not covet' may be of greater importance as a moral preaching but it cannot be a legal one. In this case, the law of the legislator will be inoperative unless an external list of covetousness were assigned by a more or less arbitrary definition and then the real subject-matter of the law would be not the passion of covetousness but the behaviour defined as evincing it". According to POLLOK, it is true that much ground is common to both law and ethics, the subject-matter of the two is not the same. The field of legal rules of conduct does not coincide with that of moral rules and is not included in it. The purposes for which they exist are distinct. Law does not aim at perfecting the individual character of men but at regulating the relations of citizens to the common wealth and to one another. As human beings can communicate with one another only by words and acts, the office of law does not extend to that which lies in the thought and conscience of the individual. The possible coincidence of law with morality is limited by the range of that which theologians have named external morality. The commandant that "thou shalt not steal" may be and in all civilized countries is both legal and moral. However, the commandant "thou shalt not covet" may be of even greater importance as a moral precept but it cannot be a legal one. A legislature may make a law against covetousness but it would be inoperative unless an external test of covetousness were assigned by a more or less arbitrary definition. In that case, the real subject-matter of law would not be the passion of covetousness but the behaviour defined as evincing it. The judgement of law has to proceed upon what can be made mainfest. Action and intent shown in acts and words, not the secret springs of, conduct in desires and motives, are the normal materials in which courts of justice are versed. With rare exceptions, an act not otherwise unlawful in itself will not become an offence or legal wrong becausd it is done with a sinister motive. It will not.be an excuse for an art

24 142 contrary to the general law to show that the motive from which it proceeded was good. If the attempt is made to deal with rules of purely moral kind of judicial machinery, one of the two things will happen. Either the tribunal will be guided by mere isolated impressions of each case, and therefore will not administer justice at all or precedent and usage will be-got settled rule and the tribunal will find itself administering a formal system of law which in time will be as technical and appeal as openly to an external standard as any other system. According to philosophy, the word ethics" is derived from the Latin ethos, which means character. In this way, ethics is the science of character, habits of activity or behaviour of human beings. Ethics is also called moral philosophy. The word moral is derivative for the latin word "mores" meaning conventions or practice. In this way, literally means the science of convention or practice. Ethics is the science of human conduct. Habits and behaviour are related to the permanent characteristics of human character. Conduct is the mirror of character. Thus, ethics is the science of character or habit. It evaluates human habits, character and voluntary determinations. Ethics is the science of ultimate good. In the words of JAMES SETH, as the science of the good it is the science par excellence of the ideal and the ought, Ethics is the science of character. But it is different from the natural and factual sciences. It is a normative science. According to MACKENZIE, ethics can be defined as the study of what is right or good in conduct". In this definition ethics has been accepted as the study of both right and good. But there is difference between right and good. Rectus the Latin word from which right has been derived, means straight or good. Thus, good behaviour will correspond to law. Good comes from the German gut" meaning that which is useful for the supreme good. In this instance, good is that which leads to supreme good. Mostly, good is taken to mean an end, not a means to an end.

25 143 In this definition, MACKENZIE has reached a compromise between two conflicting doctrines. The first doctrine is of the intuitionist s view, according to which ethics is the silence of right. Right is the basic concept. There is obligation in ethical laws. They ought to be obeyed under every circumstance. It is a duty to act in accordance with ethical laws and wrong is to act against them. Obeying moral laws is ethical. Lawful activity is right and unlawful activity is wrong. Ethical law is the determinant of good or bad in human actions. According to this school, ethics is the science of right. It searches for ethical laws. These ethical laws are unrelaxed ideals and man is bound to follow them. Thus, this theory becomes duty-predominating ethics. FORMALIST S VIEW According to the formalists, ethical laws are ends in themselves. They are not the means to some other ideal. For duty KANT presented the theory of duty and accepted goodwill as the only good. He says, there is nothing in the world, or out of it, that can be called good without qualification, except a good will. In KANT s view, goodwill is itself good. Its goodness is not dependent upon its result. Good wil is will according to moral law. Formalists believe that the ethical law stand selfproved. The conscience is innate and it acquires the knowledge of good and bad easily. Ethical laws are universal. They are simple and of categorical nature. TELEOLOGICAL VIEW Contradicting the intuitionists and formalists, the ideologists believe that good is the supreme element. With them ethics is the science of good, not right. Their point of. point of is teleological. Duty is for ethical emancipation, not for duty s sake. Laws are not for sake of law, but for the attainment of good. To abide by laws is a duty because it achieves ethical good. Any act is right or wrong in relation to the standard of good. Teleological ethics searches for the supreme good of human beings. That supreme good is the highest end. Any act leading to its good while any act hindering progress is evil. Ethics strives for this supreme human good or the highest idea of human life. Right and laws are merely the means to such an end. Thus, the definition of ethics and ethical concepts such by the Ideologists differ from that of the formalists. The teieologist morality searches for the ideal as well as the highest form of its self at the same time that it searches for the duties of mankind. It discusses those qualities which elevate the character and which help in the attainment of the