This article is written by Amay, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. The article has been edited by Ruchika Mohapatra (Associate, LawSikho) and Dipshi Swara (Senior Associate, LawSikho).
The Indian Supreme Court in 2016 ordered in the case of Shyam Narayan Chouksey v. UOI that cinema halls have to play the national anthem before screening of films, and all viewers are obliged to stand for the same. This was seen as imposing nationalist and patriotic sentiments on the general population. The CLS (Critical Legal Studies) School of jurisprudence would see the judgement of the court to be an extension of the political atmosphere created by the government. Thus, the judgement would be an extension of the nationalist sentiments of judges. CLS thinkers argue that law is an instrument used by the majority to maintain the status quo in the society which is beneficial for the majority. They argue that law is not value-free and not free from political interference and political objectives. They also argue that judges are not impartial; they understand that the independence of the judiciary is impossible as there is no political neutrality amongst the judges. The decisions of the judges are influenced by social context, thus it cannot be said to be neutral. CLS argues that law should be free from political influences and other values.
Whether laws should be value-free or should follow some values?
Though it seems that law should be free from any influence and that for it to apply equally for all individuals, the law should not be influenced by any values. However, this argument fails to accommodate the idea that equal treatment by law to all is a value in itself.
Though the law may not have any value being portrayed at the face of it, still it exists and is used as a tool to attain a goal. Law is a tool and is also based on the value that is being furthered or on which each law is to be made. Thus it would be illogical to argue that laws are free of any values. There are inherent values on which the system is based, which mould the content of the law.
The fact that we believe that the government should protect the rights of an individual is a value in itself that will guide the formation of policies and laws. This idea of the government reflects the belief that each person is free and this idea informing our decision no longer leaves law value free. Further, though CLS criticises the idea of law being politically driven, they accept that the law comes up from society and changes according to society. Thus there is some value behind each law.
Though there are some inherent values in a system, can the morals of individuals have any place in law and decisions of the court?
Whether laws and morals should be separate?
The debate regarding the severability of laws and morals from each other has been debated by Hart and Fuller. Hart is a positivist, while Fuller supported the Natural Law School Of Jurisprudence. Hart was of the position that law and morals are separate, while Fuller argued that law is dependent on the morals of society. Society shapes the way law exists and the content of the law. In addition to these two thinkers, Dworkin’s criticism of Hart’s theory also is important because in light of the criticisms Hart changed his stance from a hard positivist to a soft positivist.
It is argued that law restricts individual freedoms, thus it needs a moral justification that would justify the imposition of the restriction. For a legal rule to govern the population, it has to have some efficacy on the population. If the people who are to be governed by this law itself do not accept the content of the law, then people will revolt. Thus the justification of the law becomes necessary.
Hart and Fuller Debate
H. L. A. HART
Hart argues that law does not have to point beyond itself in order to justify its independence and autonomous existence. Natural law theorists say that law is based on morality. Hart supports the separation of law and morals. There are 3 critiques to positivism which Hart addressed: law as a command, the problem of penumbra and morally bad laws. The first critique is not relevant for this debate, however, the second and third are. The problem of penumbra refers to the attempt to determine meaning, where the law is ambiguous. What has been argued by Fuller here is that in such situations, judges decide what is from what ought to be. Thus the argument of Hart that the content of law i.e. what law ought to be is separate from what law is becomes contradictory.
To this Hart replied that the understanding that ‘what ought to be’ is not understood from a moral sense but from a legal framework. The situations of ambiguity are resolved not by referring outside the legal system but from what exists in the system itself. Positivists say the legal system is self-standing. When we decide what ought to be, we decide it from within the Legal System. There is no appeal beyond the Legal System. The doctrine of fidelity to the law that one wants to make the law consistent; is something that comes out of the Legal System. Thus the very notion of fidelity is beyond the law. It is this that makes positivists say that the Legal System has fidelity. This itself is the content of morality in positivism. Thus interpretation itself comes from within the law.
Coming to the third criticism, relating to morally bad. Fuller argues that you need legal reasoning behind a law to condemn laws that lead to violations and genocides. To overcome this argument, Hart says that he follows a minimum content theory of natural law. This means that he will allow a certain influence of morality in law. But this influence is only limited to the extent of what is required to maintain consistency within the law.
Fuller argues that Hart is aware of internal morality. He refers to it as justice in the administration of laws. They have certain mandatory concerns about justice, like the principles of natural justice. Positivists accept principles of natural justice. Natural Law theorists say that this is a backdoor entry of morality in positivism.
With regards to understanding the debate on morally bad law, we refer to Nazi Germany laws. Here the question was whether the laws made at that time were valid and whether people obeying them should be punished. Positivists would say that though the law was violative of certain rights, it was still the law. Thus individuals should not be punished for following laws. Natural law theorists would say that such law violated some higher principles thus itself cannot be said to be law. Thus people following it should be punished.
Another thinker who explains the making of laws was John Rawl. For him, justice is basic to any political society. This basic structure has to be constructed and the way construction happens is attest of just principles. Rawl says that justice turns away from utilitarianism. He concentrates on individual rights and freedoms. Rawls conceives justice as fairness rather than maximising happiness. The political system is based on justice. Where do principles of justice come from? He uses the device ‘original position’ to generate these principles. For explaining this he creates a veil of ignorance. He says if one was under a veil of ignorance, what one would want to put in a political society would be neutral. In a situation where a person was not under the veil of ignorance, they would put principles that would favour them. But here there is a veil of ignorance thus one does not know whether the principles that are formulated would help them or not. Thus one would create principles that are fair and would not disfavour them in any situation. Thus there would be justness. He says that 2 principles would come out are liberty principle and equality principle.
The second principle has a different principle. This principle states that any change in liberty principle can be done if it provides an advantage to the most disadvantaged society. So we see here is lexical order where liberty is one and after that equality. Later he changed his theory due to pluralism in America. This new concept starts from the fact of pluralism, rather than the veil of ignorance. He now argues for a political conception of justice, even political liberalism. How pluralist society is can be stable and rational through this thin conception of justice. This new theory is based on a purely political concept of good. Now in a diverse society, there are different conceptions of good. He uses overlapping consensus where you have a divergent concept of what is good is and then create a list of things that overlap. This would allow divergent communities to come up with a solution. This is how basic principles should be. But how does this overlap happen in the sense that there is consensus on what to follow? For this Rawls uses a second mechanism called public use of reason. In this public use of reason, one has to present a reason for why a particular thing should be just, but the reasoning should be understandable by the public. For example; where A says that B should be followed because his religion says so, then this will not be a public reason as C might not follow that religion.
Values in adjudication
In the case of Shyam Chouksey, it was made mandatory to play the national anthem in the cinema halls and stand for the same. Thus we discussed how morals guide the process of case adjudication at times. Dworkin disagrees with Hart’s theory in resolving the problem of the penumbra. Dworkin says that Hart’s theory is restricted as it does not accommodate principles.
Dworkin’s understanding of adjudication of cases by judges involves the judges referring to principles, outside the definition of Hart’s rule of recognition, to decide cases. He said that judges in interpreting the meaning of the law, refer to social factors other than the rules in the society. Thus we see the inclusion of societal views. In contrast to this, Hart says that the judges refer to the legal structure in place and do not factor in other principles for interpretation. Hart followed the understanding of absolute discretion of the judge when the law or rules laid down were ambiguous. Dworkin argued that this discretion is also based on something, and this something which is not in the legal system is principles and the society. In critique of Dworkin, Hart later changed his stance to a soft positivist.
Certainly, there are values attached to the law, however, there should be minimalistic involvement of morality in law. Law needs to be justifiable to ensure that people follow it. In the end, if people do not follow the law, then the system breaks. This justification has its setting in morality. As explained by Hart, there has to be minimum inclusion of morality to ensure consistency within the system. This morality of laws has to follow the constitution and has to be harmonious with other laws. However, when it comes to interpretation, the stance of Hart relating to judges operating within the legal system and using other laws to interpret what interpretation could be intended is convincing as this would prevent the judges from legislating.
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