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The Intersection of Law and Morality: A Philosophical Journey

A law student could gain a more perspicacious understanding of law if he views the law from a "bad man's" point of view and thereby recognizes the dichotomy between law and morality. This article tries to determine the specific areas of the relationship between law and morality and at the same time to demonstrate (philosophically and pragmatically) the dichotomy between law and morality.

In ancient times, there was no distinction between law and morality. Earlier society used to be governed by the morals that were law also. Later on, the distinction was made as obligatory rules and regulatory rules. In Europe, Greeks and Romans recognized natural law as the basis of law. During the Middle Ages, Christian morals were considered as the basis of law. After reformation in Europe, it was contended that law and morals were distinct and separate and law derived its authority not from the morals but from the State. Morals had their source in religion or conscience.

The 17th and 18th centuries saw another change in reverse and theories of natural law became the foundation. The 19th century saw the complete separation of law from morality when Austin said that law is the command of the sovereign backed by sanction. Kelsen finds only the legal norm as the subject matter of jurisprudence and excludes morals from the sphere of law. The approach of sociological jurists was different as they studied morals indirectly. They included morals while tracing the origin, development, function, and ends of law.

Distinction Between Law And Morals
Before delving deep into understanding the distinction between law and morality it is imperative for us to understand why the law is essential for society?

Laws are essential in any society because they are necessary means to attain the end of the State, and the goal to which all laws aim is the common good i.e. the attainment of the end for which a society exists. If we have to pithily put then Law is 'What is' and Morality is 'What ought to be'.

There is a distinction between law and morals. Vinogradoff very categorically highlighted that "Law is clearly distinguishable from morality. The object of law is the submission of the individual to the will of organized society while the tendency of morality is to subject the individual to the dictates of his conscience.

Duguit says "Law has its basis in social conduct. Morals go on the intrinsic value of conduct. Hence it is vain to talk about law and morals. The legal criterion is not an ethical criterion."

There are four points of difference between law and morals:
  1. In law, man is considered as a person because he has a free will. In morals, we have to do with determining the will towards the good.
  2. Law considers man only in so far as he lives in a community with others; morals give a guide to lead him even if he is alone.
  3. Law has to do with acts in so far as they operate externally, morals look to the intention-the inner determination and direction of the will.
  4. The law governs the will so far as it may by external coercion; morals seek free self-determination toward the good.[1]

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. 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.[2]

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.[3]

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 was 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 the 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 society, but for law and morality to walk hand in hand for the evolution of the legal world in the most fruitful manner.

  • Ahmad Khan Law and Morality.pdf

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