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All about law and morality

February 12, 2022

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This article is written by Amulya Bhatia, from Symbiosis Law School, NOIDA. This article discusses the relationship between law and morality and the conflicts that arise because of this relation.

This article has been written by Rachit Garg.

Introduction

The world around us is a smorgasbord of different beliefs, values, rules, and norms, all of which lay down how one should behave in society. It is imperative to create distinctions between all of these to avoid confusion and ambiguity. Two such conflicts which are often talked about together are law and morality. Laws are formal rules that govern how we behave as members of a society that specify what we must do and what we must not do. These are implemented by the state and judiciary to create a basic and enforceable standard of behaviour for the welfare of society. Morality on the other hand refers to an informal framework of values, principles, beliefs, customs, and ways of living. Morals are not legally enforceable but there is societal pressure to abide by the same.

This article aims to discuss at length the relationship between law and morality, along with the evolution of these two concepts with time and the difficulty in applying these concepts collectively to modern-day problems.

Relationship between law and morality

Law and Morality are two systems that govern the way humans behave. Law is a body of rules and regulations that all people are mandatorily obligated to adhere to. Morals, on the other hand, refer to general principles or standards of behavior that define human conduct within society but are not compulsory to be followed. The relationship between law and morality is a complicated one and has evolved over the years. Initially, the two were considered equivalent but with time and progressiveness, it is highlighted that the two are different concepts, but with certain inter-dependency between them.

History

In ancient times, when legal regulations were still at a very nascent stage, there was no particular distinction between law and morals. In India, Dharma was considered as law and morality. Hindu law, for example, was primarily derived from the Vedas and Smritis which were essentially values of the people. However, with time, Mimansa put forth certain principles which categorically distinguished between obligatory rules which are rules that are mandatory to be followed and are considered as law, and recommendatory rules which are suggested because they are good if they are followed and would amount to morality. Even in the middle age period, the Bible was considered as the major factor which influenced the legal regulations. Eventually, with time and new philosophies, the idea that there is a difference between these two concepts emerged.

Morality as the basis of law

Throughout history, no clear distinction has been made between law and morality. By virtue of a lack of distinction, all laws found their origin from what was considered morally correct by the people in a society. Eventually, the state picked up what was morally correct and gave it the form of laws or rules and regulations. Therefore, the law finds its origin and is based on the values that float amongst the people, creating a similarity between the two concepts, i.e. law and morality. For example, it is morally wrong to kill someone or to rape someone. This value has taken the form of a law. Morality may with time have been distinguished with laws, but it remains an integral part of legal development. Law essentially involves certain basic principles such as the principle of fairness and equality, and these principles are derived from ethics and morals.

Morality test of law

The entire purpose of the existence of laws is to ensure justice in society and do what is best for the welfare of all the people. Since the principle of justice is well under the ambit of morality, many jurists are of the opinion that there must not be any contradiction between law and morality. Any law which does not abide by moral standards should be removed and whether a law is right or wrong can be evaluated based on whether it is in consonance with moral values.

Morality as ends of law

As stated before, the end goal of enacting laws is to maintain a society that is based on principles of justice, fairness, and equality. The entire purpose of having certain moral standards is also to maintain some sort of order in the society which would lead to fewer conflicts. This shows that more or less, the purpose of both these phenomena is the same. It is believed by jurists that if the law is to stay involved in the lives of people, then it cannot ignore morals. If there is a law that is against moral standards, people may be hesitant to obey it which will create further conflicts within the society.

Difference between law and morality

Law and morality may be interdependent to an extent and have certain similarities such as the same goals, but there are certain factors based on which the two concepts can be differentiated:

Law is derived from an external source which means that it is obtained through rules and regulations. Morality emerges from internal sources, i.e. it comes from the individual mind of a person.
Law treats all people in the same manner and doesn’t change from person to person but morality is a subjective concept.
Morality has influenced the creation of laws but morality existed in society since even before legal implications were discussed.
Disobedience of the law leads to punishment but there are no repercussions of doing anything morally wrong.
Laws lay down mandatory behaviour that is expected out of the people who are governed under the said law. However, morality does not lay down strict guidelines of how one should behave but is a more personal concept.

Philosophical alternatives

There are broadly two theories that have aided in the evolution of law which is legal positivism and natural law theory.

According to the natural law theory, any grossly unjust law, thereby violating standards of morals, is not a law at all. This means that law and morality are deeply connected. The term ‘natural law’ in itself comes from the idea that human morality comes from nature and takes the form of rules and regulations in a society. Legal theorists who were in support of the natural law theory were Augustine, Aquinas, Lon Fuller, and more.

Legal positivism on the other hand states that the legal body exists devoid of any norms of morals. That being said, this theory does not entirely deny the influence of morals on laws. The theory follows the view that all laws, rules and regulations are man-made and thereby advocate the separation of laws and morals. Legal theorists who advocate for legal positivism include John Austin and H. L. A Hart.

Hart-Fuller debate on law and morality

The Hart-Fuller debate is one of the most interesting exchanges of ideas and opinions between Lon Fuller and H. L. A Hart on the intriguing interdependency between law and morality. This was published in the Harvard Law Review in 1958 and essentially highlighted the difference in opinions in the positivist and natural law philosophy. To understand the points put forth by both these ideologists, it is important to analyze their beliefs and the reasoning behind them separately.

H. L. A Hart

Hart is a positivist and is thereby of the opinion that while there may be a close relationship between law and morality, the two are most definitely not interdependent. That being said, Hart does believe that law has been heavily influenced by the morals that prevail within the society. According to him, a clear distinction needs to be made between what law should be and what it ought to be. This is where Hart brought in the problem of penumbra which refers to determining meaning where the law is ambiguous. Fuller in opposition to this stated that in situations where the law is uncertain, the judges make decisions based on morality, basically from what ought to be. To this Hart responded by saying that determining what ought to be must be understood from a legal sense, and not from a moral one. Essentially, interpretation of the law cannot come from outside of the legal world.

The law has primary rules and secondary rules. Primary rules impose certain regulations on the citizens and secondary rules provide power to the state to make and implement these rules. This means that the law doesn’t have to align with moral standards. Despite making a clear demarcation between law and morality, he also believes that the two are bound to intersect at some point.

Lon Fuller

Fuller is a naturalist who believed that there exists a strong necessary connection between law and morals. According to him, all legal norms are based on moral norms. In simplest terms, no law can be deemed as valid if it does not pass the test of morality which is based on ethical ideas that people have. Fuller has further categorized morality into two aspects; Morality of aspiration and morality of duty. The former is concerned with moral norms that are followed by a person for their individual best interest. The latter on the other hand is more relevant to the smooth functioning of society by prescribing standards that all people must follow. Fuller also elaborated on two concepts which are “Internal morality of law” which deals with the procedure of framing laws and “External morality of law” which is more about the essence of law which is used to make decisions.

Analysis of Hart-Fuller debate

Both these legal philosophers aimed at achieving justice but their way of achieving it was different. Their ideologies can be better understood with the help of real-life examples. Let’s say the law says that it is prohibited to park a vehicle in a particular place. Now parking your vehicle in that place is obviously not morally wrong, but is still against the law. This means that law can exist exclusive of any moral obligation of interference or dependence which is what has been established by Hart.

On the other hand, let’s take a look at the Nazi regime when the laws enacted by Hitler were devoid of concepts of morals and ethics. The Nazi regime, we would all agree, was unfair and cruel to humanity, and the result of that was not justice. When laws were not in conformity with morals, it led to injustice and that, in a nutshell, is Fuller’s opinion.

Upon careful examination of their opinions, it can be understood that the ideas of the two philosophers can definitely be met halfway. Morality and law don’t need to be two far-fetched ideas and can have a certain amount of overlap between them. However, the legal world will have to prevail over what people might believe since morality is subjective.

Trolley Problem

The trade-off between making a deliberate choice to save five people by killing one sums up the idea of the trolley problem. The trolley problem is a fictional scenario in which an individual who is witnessing the entire situation has the option of saving five people from being hit by a trolley. However, these gestures come at the price of diverting the trolley towards one person and thereby killing them. Whether one must do something despite not being legally obligated or understanding if certain sacrifices are acceptable are questions brought forth through the trolley problem. A lot of law jurists when thinking about this issue have observed that it must be morally permissible to avoid five deaths when the alternative is one death. But imagine, what if there was no way to divert the trolley but you can stop it by pushing a person in front of it. Is it still morally correct because the outcome remains the same? This is a different case since in this one a person is being used as means to an end for doing something legally wrong. There are two schools of moral thoughts, namely the utilitarian perspective and the deontological perspective. The former says that any action which achieves the greatest good for a greater number of people is morally correct. The latter on the other hand says that killing an innocent person in any circumstance is wrong.

Dudley and Stephen case

One of the most famous cases that deals with the age-old debate between law and morality are R v Dudley and Stephens (1884). Whether cannibalism, which was considered a highly immoral act could be committed when there is a question of necessity and helplessness was discussed in the case. The facts of the case involved four men who were stranded in a boat, in the middle of the sea, far away from land. The men had no way of contacting any person and were stuck in the boat without any food and water. After torturing themselves for seven days without food and water, the captain of the ship, Thomas Dudley, found an immoral solution. He suggested that one of the four men would have to make a sacrifice so that the other three could survive by eating his flesh. Edward Stephens agreed while Ned Brooks refused to go ahead with this plan, and Richard Parker, the cabin boy was not consulted. Eventually, the boy was killed by Dudley and Stephen following which the three men fed on the boy’s flesh.

When the men were rescued, the two men were tried for committing the grave offence of murder. While prima facie it appeared that a crime was committed, the case discussed whether, at that moment, the man being morally right for saving his own life could be excused from the shackles of law. However, a clear distinction was made between law and morality and it was observed that personal inconvenience or an attempt to save your life by killing another cannot be used as a justification.

Challenges due to interlink between law and morality

The two concepts of law and morality may be different for a lot of reasons, but the one thing that they have in common is that the two affect the way we live our lives. Both morality and law are ambiguous concepts without any definite meaning. Both of these notions have evolved with new ideas that emerged with time. Nowadays, it has appeared that the idea of morality has started to differ from one person to another. This means that morality in itself has become subjective; what may be morally incorrect for one could be morally correct for the other. When there is no fixed standard of what may be morally right, how exactly can the lawmakers base laws on morals? The modern world is witnessing a clash between law and morality and there are multiple issues where these two concepts must not overlap, and the new laws must entirely depend on the existing legal framework. A progressive outlook, which may not be entirely in line with morals, is required to enact laws that will ensure justice. The following issues can be analyzed to understand the struggle between law and morality from a practical perspective:

LGBTQ+ rights

There is a constant conflict within our society regarding the rights of the LGBTQ+ community. Not everybody thinks that same-sex marriage or being transgender is morally correct. However, this cannot take away from the fact that when you disallow same-sex marriages or refuse to give to this community rights that every citizen deserves, you are violating basic principles of the Indian Constitution such as the Right to Equality and the Right to live with dignity enshrined in Article 14 and Article 21 respectively. Basically, there is a clash within the society regarding what is morally correct and incorrect when it comes to the rights of the LGBTQ+ community. It took India a long time but the Hon’ble Supreme Court on September 6, 2018, decriminalized Section 377 of the Indian Penal Code. Had the Supreme Court continued to base law on what people in the society believe to be moral instead of principles of the Indian Constitution, it never would’ve been able to take such a progressive stance in this field.

Live-in relationships

Live-in relationships have often faced a lot of scrutiny from society. Despite it being legal, there are a lot of moral judgments that follow. The Hon’ble Supreme Court in the case of S. Khushboo v. Kanniammal (2010) held that live-in relationships are legally recognized as ‘domestic relationships’ and thereby protected under the Protection of Women from Domestic Violence Act, 2005. It was observed that a live-in relationship comes within the ambit of the right to life enshrined under Article 21 of the Constitution of India. Live-in relationships can continue to be scrutinized on a moral ground by certain people in India as much as one wants, but they are legal because law and morality are not equivalent to each other.

Abortion

The complexities around abortion are multifaceted. Some reasons why abortion is justified and legalized include the rights of a woman and the protection of a woman’s health. Abortion, however, has always been considered morally incorrect because it is believed that it involves taking away the life of another, which at that particular stage is only a foetus. Unfortunately, women are shamed for taking this step, especially if the pregnancy is unwanted. Abortion in India has been legal under various circumstances for the last 50 years with the introduction of the Medical Termination of Pregnancy (MTP) Act in 1971 and has seen amendment in the year 2021 as well. The legal battle has been won, but unfortunately, the moral one is still ongoing.

Luckily, the law is not based on the moral beliefs of those who refuse to recognize the rights of women in such situations. Had morals been considered, this would most certainly be a regressive move in the area of women empowerment and the spirit to achieve equality between all genders.

Conclusion

It is clear that law and morality have a long history and it is believed that law is heavily influenced by morality. While that is true, it can also be observed that rules and regulations also have a great impact on the moral standards that exist in society. For example, when voting rights were not given to women, the majority of people believed that it is morally incorrect to give women a voice due to multiple reasons. It is only when this voice took the form of a law that people slowly started accepting the agency of a woman and their moral ideologies on the issue began to change. Law has a lot of power to change the way people view things and must be used as a right tool as opposed to morality. It is essential to understand that there isn’t supposed to be a competition between these two concepts in terms of analyzing which is more productive for the welfare of the society, but for law and morality to walk hand in hand for the evolution of the legal world in the most fruitful manner.

References

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