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Law and morality are too vague
to understand. It must be added here that the notions of law and
justice can't be captured and presented before us within a few
sentences. These notions are too vast that even words are not
sufficient to define them. Many jurists from the ancient Greek
period to the modern and even the post-modern era have attempted
numerously to define these concepts, but have failed. One of the
reasons may be that the roots of these concepts lie somewhere
within the human psyche, which is extremely random and versatile.
Well it is required 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, positum, has to be kept
separate from the law that ought to be.
The positive law school has
its main pillars as, Jermy Bentham, John Austin, Prof. H.L.A.
Hart, 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.
After having a brief idea of
legal positivism, we should move to the Natural Law school.
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.
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 man made 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.
Now it is time to go a little
further deep in the project. We are constantly talking about law
and morality, so let us know the meaning of these two concepts.
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 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 starting of 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. I prove this point of mine by the following example of our
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. The great jurist asserts
that force is necessary to control human behaviour because
humanity as a whole is not governed by reason. If every one 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 can not 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 he 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 steel, 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? 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.
But 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, I 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 religious 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.
Now a question arises that, is
law responsible for the enforcement of religion and morality?
Pornography,
prostitution, homosexuality
etc. are areas of ones own consciousness and hence it is an area
of conflict which is still continuing. So, does law has got the
right to intervene with religious and moral feelings among people?
For example, there is a moral notion in our Indian society that
love marriages or
inter caste marriages are not
feasible enough and hence should not take place. Consider the
claim that homosexuality is immoral. I strongly disagree. Now
what In a contest between a majority of state legislators and me
and those who agree with me, what privileges the legislature's
judgment of morality. In what way are they experts
How does being elected to the legislature qualify them to make
these judgments. Do they hold hearings on the morality of homosexuality and offer
reasons for their conclusions. Or do they just press a
button and register their vote. Most
importantly, how can we assess the merits of their claim.
If we cannot, then in reality they can prohibit whatever they want
(and for whatever reason they want). No matter how objective
morality may be, any such doctrine of constitutional law is recipe
for tyranny. Take the issue of living relationships, which carries a moral ban on it. I
don't
understand that if two major individuals with their exercise of
free consent decide to live together, where the question of
infringement of any rational standards arises. This shows that the
moral standards are never rational by effect.
Now I ask the question that,
should a law be made to enforce such moral standards. Is such a
law not repugnant with the constitutional principles of liberty
and freedom.
The legal positivists like, Bentham, Austin, Kelson have always said that law must never be
used as an instrument of enforcement of any moral standards.
Therefore, as one cannot see the mind and conscience, elements of
morality become weak and not determinable. But law is convenient,
the present writer asserts again that it is only convenient; it
has withstood the test of time. At any particular time, for any
situation, law becomes a technique to establish a certain expected
social behaviour. Morals may be for enlightenment and would
facilitate individual peruses. Therefore it is thought and
envisaged by the present writer, as compulsions and aspirations
influence life, a legal system should consist of principles of
convenience and feasibility whereas morality should be left to
individual freedom and practice. Legal enforcement of these
moralities which causes negative impact in the growth of our
society must never be determined. Recently a pastor informed his congregation that Christians can no longer seek to impose their
moral values on a society which does not accept Christianity. The
second part of the statement, at least, is quite wrong. While
Church membership and attendance has sharply decreased, the Roy
Morgan Study of the Values of the Australian People demonstrates
that 80% believe in God.
Should Christians seek to
impose their moral values on law and society.
There are some who
are forcibly and aggressively arguing that Christian values must
be expelled from law, society and politics. Gareth Evans (now
Senator Evans) is reported in The Sydney Morning Herald, May 7th,
1976, as stating at a convention of the South Australian Council
for Civil Liberties that children wanted a right to sexual freedom
and education and "protection from the influence of Christianity
The same article referred to
Mr Richard Neville (of Oz fame) as stating that "promiscuity is
one beneficial way of breaking up
the family structure, which has led children to become the
property of their parents. Law cannot be an instrument of
expression of moral standards, rather law has to be independent of
all sought of moral dogmas except certain areas in which law is
dominated by morality. e.g. Legal areas like the business laws,
cyber laws, tax laws, company laws, trade laws, etc are
exclusively a legal treatise and morality has got nothing to do
with that of law in such areas. Take the historical example of SITA whose fundamental and moral instinct has now changed it into
PITA.
But on the other hand we can
never deny that a major content of law derives its content from
that of morality. Like that criminal law is a product of moral
notions. For example, all religious and moral norms say not to
kill or not to steel, and it is the same here in law. So, we have
almost the same content between law and morality . The positive
thinkers have thought in a narrow interpretation of law because
they overlooked religious and moral values.
The actual conclusive
situation is that religion, morality or law all have the work of
controlling the behaviour of individuals of our society, hence we
must not exclude the importance of morality in our society. In the
case of International Humanitarian Laws, certain moral standards
are also recognized as a part of law. So, the absolute separation
of law and morality is not possible in these areas where morality
produces a positive effect in society which is prospective in
nature.
There seems to be quite a
strong connection between law and morality. Although people
sometimes say "you shouldn't legislate morality", they presumably
don't really mean this - why would we outlaw rape and murder if
they weren't wrong? Instead, I suppose they mean that people
shouldn't impose their personal moral views (especially regarding
sexuality) upon others. I would agree with that sentiment, though
my reason is precisely because I think legislation should be
morally informed, and the "moral views" in question are entirely
misled.
As a quick aside: it is
unfortunate that the word "morality" has become associated with
conservative values, because the obvious invalidity of those
values to many people tarnishes their attitude towards morality as
a whole. And that is a damn shame. When conservative groups
advocate bigotry masquerading as "family values", we need to recognise the injustice of this, and instead stand up for what is
right. But I digress - this isn't intended as a post about how
liberals need to reclaim the moral high ground.
So we accept that there is a connection between law and morality,
but what sort of connection is it. Their domains are clearly not
entirely identical - for example, it may be wrong to lie to your
parents, but it certainly is no business of the law. Perhaps the
best way to explain this is to acknowledge that the law is an
extremely blunt tool, and so will be of no help when dealing with
minor or subtle moral issues.
But even if some morality is
outside the scope of Law, could Law's domain be a subset of the
Moral? That is, should we only ever outlaw immoral acts, and never
morally permissible ones?
I would like to say 'yes', as
it does seem like a good principle. But I can't, because it
contradicts my position on some other issues. That is, I think
morality is purely 'other-regarding' in nature, and merely harming
yourself (e.g. smoking in private) is not immoral. On the other
hand, I previously suggested that state paternalism could be
acceptable.
To approach this topic from a
slightly different angle now, the intriguing suggestion that we
understand law and morality in terms of belief-desire
psychological theory. That theory claims that any human action can
be explained solely in terms of the beliefs and desires of the
agent. For example, if I turn on a heater, this may be because I
desire to be warm, and I believe that turning on the heater will
achieve this end. To apply this to our current topic, consider how
society can influence the actions of its members. According to
belief-desire psychology, there are two broad options: change
someone's beliefs, or change their desires.
Morality, by this
understanding, corresponds to the latter option. That is, morality
is a system of socialisation whereby society instills in its
members the desire certain ways. (I discuss some of the
implications of this view in more detail here.)
The other method of influence
is to alter people's beliefs about how best to fulfil their
desires. This is where Law comes in. Its role (according to this
interpretation) is to serve as a deterrent for those who, for
whatever reason, fail to be bound by morality. It achieves this
through the threat of punishment, i.e. by instilling in citizens
the belief that breaking the law is not in their own best
interests - they could get caught and sent to jail, which would
surely thwart many of their other desires.
So by this view, law and
morality are just two sides of the same coin -
namely, that of socialisation. Morality seeks to influence our
behaviour by way of our desires, whereas law is the 'back-up'
option, and targets our beliefs.
This is true in the United
States as well, and not only in how our legally mandated school
systems and our criminal laws contribute to the shaping, including
the moral training, of citizens. Yet the typical opinions in a
contemporary liberal democracy are likely to be:
(1) that morality cannot be
legislated; and
(2) that even if morality could be legislated, it should not
be...that to do so is somehow improper, even tyrannical, either
because there is no morality objective enough to justify legal
enforcement or because one's autonomy and individuality would be
violated by attempts to legislate morality or perhaps even because
one really has no autonomy that can respond to any external
directive.
Such concerns are not evident
in the Ethics: law is needed both to help habituate citizens to
virtuous actions and to help maintain the salutary habits they
acquire. These needs can be recognized even by those who are aware
that the virtues generally fostered by law are not the highest.
The opinions one may have about the good, the true, and the
beautiful are a secondary concern of most laws. Still, it is well
to keep in mind Aristotle's counsel that one who is "to listen
intelligently to lectures about what is noble and just must have
been brought up in good habits." For proper habituation, laws can
be most useful, if not indispensable. Although intellectuals of
liberal democratic sympathies may not believe that morality
depends on law, it is almost impossible for any regime that takes
itself, and is to be taken, seriously not to shape its citizens
with respect to morality. To deny that legislation of morality can
or should take place does not eliminate such legislation; it
merely conceals it, perhaps distorts it, and otherwise confuses
and misleads rulers and ruled alike. (Here, as in physics, much
that Aristotle noticed and relied upon is tacitly relied upon by
us as well, but relied upon haphazardly because it is not properly
noticed.)
It would be useful, therefore,
to indicate how pervasive Aristotle understands the law to be with
respect to morality in a community. When we see what law can mean,
and how it works, we may better appreciate what the law does in
the service of morality, even in such a liberal democracy as ours.
To speak of the influence of the law is, we shall see, to speak of
the many ways that the community forms the citizen and guides the
human being. For us, however, the term law does tend to be limited
to what "government" does, to the statutes and decrees that
governments issue. We have noticed the most conspicuous way, drawn
upon at the end of the Ethics, in which morality is dependent on
law. It should be added here that not only is morality somewhat
dependent on law, but also that the law itself is to a
considerable extent dependent
on morality. A properly trained, morally alert citizen-body tends
to be appalled by the lawbreaker. But does not this response
(which can help keep many would-be lawbreakers in line) rest, in
turn, upon the presumption that the law is likely to be, and in
fact usually appears to be, itself moral and in the service of the
common good. There is a critical reciprocity between law and
morality. Reciprocity, we recall from the Ethics, can be vital to
justice as a particular virtue. The exercise of most virtues
requires a stable community, one in which one's body and life as
well as property are fairly secure...and, of course, the law is
essential here. To become or to remain a civilized human being
usually requires a sound community...that is, one in which the law
plays a considerable part. Is there not an intimate relation, at
home and abroad, between justice and peace
To recognize this is not to deny that friendship also seems to
hold communities together nor that legislators may care more for
it than for justice. Even so, is not proper habituation needed for
reliable friendships, as well as for justice. Who but the
legislator, who must always be distinguished from the tyrant, can
insure such habituation
If law is not based on
morality, on what can it be based - Christian morality, derived
from the Ten Commandments, underlies the common law. Criminal law
is based on the Ten Commandments, which also underlie the law of
contract and the law of civil wrongs. The common law inherited by
the British Colonies on the Australian continent and by the
Commonwealth established in 1901, was developed over many
centuries by British judges, who reacted to particular human
situations on the basis of
Christian values. In an essay entitled "morals and the Criminal
Law,
Lord Devlin wrote:-
"Society means a community of ideas; without shared ideas on
politics morals and ethics, no society can exist. Each one of us
has ideas about what is good and what is evil; they cannot be kept
private from the society in which we live. If men and women try to
create a society in which there is no fundamental agreement about
good and evil they will fail; if, having based it on common
agreement, the agreement goes, the society will disintegrate.
"For society is not something
that is kept together physically; it is held by the invisible
bonds of common thought. If the bonds were too far relaxed. The
members would drift apart. A common morality is part of the
bondage. The bondage is part of the price of society; and mankind,
which needs society, must pay its price ".
Conclusion:-
There can never a hard jacket or a universal formula which could
determine that should law 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 steel, 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 morality.
For example, the celebration of Valentine's Day in Indian society
is considered as amoral. But such morals must never get the
institutional shape of law.
Endnotes:-
i. Positivism and separation of law and morals (1957-58) 71 Harvard
Law Review at p 601 n 25
ii. The Philosophy of a Law, ed. R.M. Dworkin, Oxford University
Press, London, 1977.
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