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 coinnamely, 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 ".
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.
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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