Laws are written guidelines that outline what we must and must not do when
acting as members of a society. These are put into place by the government and
judicial system to establish a fundamental and enforceable code of conduct for
the benefit of society. On the other hand, morality refers to a loose framework
of standards, precepts, convictions, traditions, and ways of life. Although
morality cannot be enforced by law, there is social pressure to do so.
This debate is about the relation of morality and law and the interrelations of
the end of law and morality.
I am the debate master.
To understand the debate, we will have to first understand what law is and
Positive Law Theory
It's also known as Legal Positivism or Imperative proposition of Law or
Austin's proposition of Law. It's also read as man- made law.
John Austin is considered as the author of positive law propositions.
Law is a command of the autonomous government backed by the sanctions.
According to Positivism, the constituents of Law, i.e.
Command, (set of rules or principles)
Sovereign, and (state i.e., independent authority)
Natural Law Theory
Natural Law means:
- That Morality comes from nature.
- Morality means our sense of right and wrong. It has a literal approach.
- It's also read as 'made by nature'.
- The father of the natural law proposition is considered by many to be
- It also encompasses occasionally godly law i.e., law made by God.
- The law is a system of rules that a society or government develops in
order to deal with crime, business agreements, and social connections. Law
is always backed by permission of the leaders or the constitution.
- Law is a means of social control, deterrence and a way to get a just
society. (When used rightly).
- There are direct and rough corrections for those who defy the law.
Relationship between Law and Morality:
- It is a value, a morally correct value. That emerged before law.
- It is a set of ethical principles that define what morally is right or
- Being a value, it has no such significant body to enforce the moral
codes resulting in the absence of punishments and can be followed or not
followed according to a person.
- The main aspect that defines this right or wrong quality of action under
moral terms is the intention of the person committing that particular
- Social generalities similar to ethics, religious training etc. directly
influence in creating morality standards in a certain community or country.
- Hence, it's these social generalities that formulate morality, unlike
the law that's formulated by the state.
Differences between Law and Morality:
The following are some of the differences between law and morality:
- The overarching thing of the state is to promote people's well- being.
- Individuals can also profit from political wisdom in order to become
- An existent can only become an ideal citizen if he adheres to the
morality law of conduct.
- As a result, there's a strong connection between law and morality.
- And when a state functions under ideal moral rules can it be called an
- The foundation of ideal laws is morality. It will prop the exigency of
an ideal state if the state works under ideal laws grounded on morality.
- For illustration, moral laws are those legislated with the end of
barring immoralities and malpractices similar as wine drinking, gambling,
theft, dacoity, and murder.
- They arouse spiritual passions in us and help us develop as humans.
- Only similar innocently grounded rules are everlasting.
- Progress is insolvable to achieve in a society ruled by moral
- In a state where crime is promoted, people will be too distracted with
committing crimes to think about their own success. As a result, they will
return to their natural state of wantonness.
- Citizens who live in a bad state will be bad, while citizens who live in
a good state will be good.
- As a result, the state bears full responsibility for upholding a high
- Generally, laws are the image of morality. In the utmost republic,
there's no similar rule as opposed to morality. Wilson is right in his
observation that a state's law is the product of the creation of morality
within the state.
- This is why the autonomous law- making authority pays close attention to
the law of law- morality closeness, which states that" the line between the
illegal and immoral is vague."
- Both public sentiment and stations are told by the state and
legislation; law, in turn, represents public opinion and thus serves as a
mark of moral change.
- While morality is concerned with regulating both the internal and
external conduct of men, law is concerned only with regulating the external
affairs of men.
- Time and again, we've been perturbed by the connection that exists
between law and morality.
- While it can be said that law brings within itself some reflection of
public morality, it's also true that certain effects may not be illegal
according to law, but perhaps inferior to morality.
Queen vs Dudley and Stephens Case
- Law is concerned with a person's individual liberty, while morality is
concerned with collaborative generalizations of what's good and evil.
- Law governs a man when he's a member of a particular society, whereas
morals govern a man indeed when he's alone.
- Laws consider a man's outside actions, while morals consider factors
similar as inner resoluteness and restraint direction.
- Law is assessed by" external compulsion," while values appeal to an
existent's free will.
For numerous days, the defendants, Dudley and Stephens, as well as two other
gentlemen, Mr. Brooks and the survivor, Richard Parker, sat on the boat. When it
became clear that everyone would corrupt from thirst and hunger, the defendants
agreed to kill Parker for the sake of the others. A man who kills another to eat
his meat in order to escape hunger death is shamefaced of murder; still, he's in
similar circumstances at the time of the act that he believes and has fair
reasons to believe that it's the only way to save his life.
In this case, the court held that one person cannot immolate another person's
life to save his or her own. And on these data, there was no substantiation of
any necessity that could justify the captures in killing the boy and they were
shamefaced of murder. It becomes veritably important clear by the decision in
this case that what appeared to be innocently right from the eyes of the
defendants was considered as a crime in the eyes of the law.
With everything understood now let's get to the meaty part.
Hart And Fuller Debate
Legal positivists and supporters of natural law have long engaged in argument.
For the positivists, morality and law are simply "what is," and law is
fundamentally about a division between "what is" and "what ought to be." In
other words, the legal system is a self-sufficient system of "what is" and does
not require external justification from generalizations made by other people or
from a different moral or religious system.
However, proponents of Natural Law theory dispute this assertion. They contend
that Law is founded on a foundation that extends beyond the legal system,
notably morality. Thus, the legal theoretical debate between positivist theory
and natural law theory has given rise to this debate between law and morality.
The positivist H.L.A. Hart and the natural law theorist Lon L. Fuller, who
represent these legal viewpoints, participated in protracted discussions about
these two schools of jurisprudence.
Prof HLA Hart was a legal positivist and a critical moral champion. As a legal
positivist, he states that it isn't necessary that laws have to inescapably
satisfy certain demands of morality. While admitting the close relationship that
exists between law and morality, he doesn't believe them to be interdependent on
each other. He states that the actuality of law can not be judged by its graces
or faults. A law happens to live, irrespective of our likes or dislikes.
Whether the law confirms a set of minimal moral norms isn't a pre-requisite for
actuality of a legal system. It isn't essential that a legal system must parade
some conformity with morality. Laws simply don't cease to live on the ground of
Unlike the other legal positivists, Hart doesn't deny that the development of
law has been profoundly told by morality. Hart acknowledges that law and morals
are bound to intersect at some point. thus, it becomes necessary to distinguish
between what law is and what law ought to be. According to Hart, legal
practitioners should display the probity or veracity about law, by concentrating
on what it says rather than fastening on the aspect on what one wishes it to be
Hart says that the substance of law consists of two different kinds of rules,
i.e., the primary and secondary rules. Primary rules are the duty assessing
rules that have legal permission which imposes certain duties on the citizens.
Secondary rules are the power- conferring rules that define the manner in which
the primary rules are to be honored, changed and arbitrated. Secondary rules can
be said to be rules about primary rules. Together the primary & secondary rules
form the heart of the legal system. And the principle of justice or the rule of
recognition is the ultimate rule that binds the legal system as a coherent
Hart acknowledges the problem that might occur due to lack of perfection in the
words used in language of an enactment, which he refers to as the core of the
law. Not all cases might exactly fall within the core of the law. occasionally
standard cases of the words may not be sufficient to give proper effect to the
law. Prof Hart calls these as the problems of the penumbra.
It also becomes necessary that the meaning of the words in an enactment is
decided first while applying legal rules to the data of the case. Hart believes
that the problems of the penumbra can be fluently answered by way of judicial
interpretation. In working the problems of the penumbra, Hart addresses the
necessary crossroad between law and morals.
The criterion which at times, makes a decision sound in similar cases is when a
moral judgment is made about what the law ought to be and in similar
circumstances, morals can be of an influential factor in deciding cases in
Professor Fuller defines law as a particular way of achieving social order by
guiding mortals according to rules. It's the enterprise of subjugating mortal
conduct to the governance of rules. According to Fuller, our legal procedures
are erected out of morals of justice, which have a moral aspect.
The procedures which are embodied in a legal system are innocently important in
determining whether a set of rules count as a legal system. He believes that for
a law to be called a law in true sense, it must pass a moral functional test.
However, it doesn't count as law, If a rule or a set of rules fails to conform
to this function.
While explaining the conception of morality, Fuller categorizes the term
morality into two different set of factors. One set comprises "morality of
aspiration" and "morality of duty".
Morality of aspiration connotes a asked norm of mortal conduct which would seek
to promote his stylish interest. Morality of duty describes the norms which are
followed by mortal beings at given time and place, so as to ensure smooth
functioning of the society.
The other set of moralities correspond to what Fuller calls as the "external
morality of law" and "internal morality of law". Internal morality of law is
concerned with the procedure involved in making law. Internal morality of law
can be said to be a morality of aspiration rather than a morality of duty. And
external morality of law denotes the substantial rules of law which are applied
in decision timber.
Fuller rejects the positivist approach to law. He urges the lawmakers to realize
that there live other ways and means to attain society's end rather than
counting only to law. He believes that if the law makers realize this, they can
also make effective use of law as a machinery to regulate our society. Fuller
asserts that not all authorizations which have the power to impel compliance can
be rightfully treated as law.
Fuller prescribes eight norms and says that for a principle to be respectable
as law, it must be measured in terms of these norms:
- The principle must be expounded in a manner so that it can be generally
- Law must always be announced they must be communicated to the people to
whom they are directed.
- There should be clarity in law.
- Law should be free from antithetical authorizations.
- Laws shouldn't put on individualities insolvable norms of action etc.
Fuller says that law is terrestrial in its origin and operation. Law is made
by man to suit the requirements of humanity. Thus, a law has to have a
concinnity of purpose for regulating mortals for attaining society's objects.
Fuller questions whether substantial rules of law can be neutral i.e., devoid of
any relationship to morality. And answer it in negative. He states that
substantial rules have to inescapably be moral for promoting objects of
humanity. (External morality) A law should be fluid enough to acclimate to the
dynamic nature of humanity. And it's only possible if it takes into
consideration the nature of man. Law according to Fuller should be used to bring
people together for fostering their stylish interest.
The debate between Prof. Hart and Prof. Fuller:
The debate between Hart and Fuller progressed with a case, where a German woman
reported her partner to the Gestapo for opposing the war strategy of Hitler. The
husband was set up shamefaced and doomed to death, which latterly was changed to
The hubby endured the battle and began legal conduct against the woman later. In
her defense, the woman claimed that she had reported her hubby because he'd
committed an offence under a Nazi enactment from 1934. The Enabling Act of July
12, 1934, legislated by the German Reichstag, established the underpinning
premise of Nazi legislation by amending the German Constitution to allow Hitler
to issue rulings that were antithetical to it.
It declared that Hitler's laws and will were the same. The German courts faced
serious conflict to either decide to observe the law or to observe the ethical
duty to perform what people allowed was correct. There was an imperative need to
re-establish the prestige and authority of Laws and justice.
They agreed that declaring all governance's laws under Nazi rule, and citizens'
conditioning following those laws, illegal would affect in maximum social
decomposition. still, they believed that some of the Nazi mechanisms of
regulations were so condemning to mortal values that it was apparent to discard
conditioning conducted through similar laws to convert the citizens that the new
governance is against similar depraved laws. As a result, the Court declared the
woman shamefaced for doing negative to the clear heart and" sense of justice"
that's present in ordinary mortal beings.
Hart discarded the judgement of the German court stating as the Nazi laws were
factual laws since they were established under the Reichstag's Enabling Act, no
matter how terrible and terrible they were. The recognition rule of Hart was
followed. According to Professor Hart, there were only two choices left with the
judges moreover to maintain the credibility of the legal opinions let the woman
go free because the legislation shielded her or apply retrospective legislation
repealing the law within which she claimed protection.
Hart critiqued the Supreme Court for using the idea of morality to decide that
the conduct of the woman was immoral. Fuller accepted the Court's decision
because it fosters regard for both morality and law by making illegal laws
illegal and thus carrying a high position of adherence to the law.
According to Fuller, all laws made during the Nazis' governance were non-laws.
He claimed that the Nazi absolutism was so anti-moral that there was nothing
concrete in the institution that could be classified as a law. He claimed that
the Nazi laws demanded the essential sensibility and morality essential in the
legislative procedure, which gives it authority, making them obligatory to
follow. Fuller contended that until Nazi laws were recognized as non-laws,
perpetrators of Nazi- period atrocities would go unpunished.
Conclusively from the debates and assaying of the point of contention produced
by Harter and Fuller, judgements and laws put a balance between law and morals.
We've a rule of law for the major issues and conflicts courts face, but it's
insolvable to put every clause and situation for every issue in the enactment,
hence also the discretion of judges comes into the frame where ethics play a
vital part to conduct justice. It's considered that if legislation is to be
embraced by the public, it must misbehave with the asked pattern. Morals play a
pivotal part in determining these morals.
So, who won? This question can be answered when one concretizes the approach,
takes a side. I am on this fuller side of the debate. Go on comment yours!
Written By: Somitra Vardhan Dubey
BALLB from DNLU will guide you through the debate.