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Morality in Rule of Law

Jurists have defined law differently from different point of views. It has been called Dharma in Hindu jurisprudence and Hukum in Islamic system. Romans called it Jus and in Germany and France is called Richt and Droit respectively.

According to Blackstone, law in its most general comprehensive sense signifies a rule of action and is applied indiscriminately to all kinds of actions, whether animate or inanimate, rational or irrational. The subject matter of the instant paper is the relation between rule of law and morality.

The concept of rule of law is a prevailing aspect in most of the countries in the world. Rule of law is a theory that propounds that neither the people nor the government elected by them, are above the law. It's a principle that all people and institutions are subject to and accountable to law that is fairly applied and enforced;

Morality or Morals according to Paton is a study of the supreme good. Morals are concerned with the principles of right and wrong behavior and the goodness or badness of human character.

Morality And Law

Law and morals act and react upon each other in the course of structuring the legal system. Morals have provided a basis for the development of law by virtue of justice, equity, good faith and conscience. There's a role of morality in making of law and its interpretation. There is always a scarcity of laws that would oppose public morality, and thus it can be understood that morals are an intrinsic part of the laws. According to the Confucian idea of Internal Sage and External King, internal moral cultivation like a sage is the foundation of governance. This combination contained in Confucian works, moral norms and expressions known by Chinese people.[1]

There was a lack of distinction between morals and law initially. In the ancient India, both law and morality were considered as one and the same, where most of the laws had their origin deriving from morals in the Vedas and puranas. In Europe, a theoretical moral foundation of law was formulated by the Greeks in the name of the doctrine of natural rights. During the Middle Ages, Christian morals were considered as the basis of law.

But as the time passed, distinctions between the two were observed in the actual practice. With the reformation in Europe, there were contentions that law and morals were distinct and separate and law derived its authority not from morals but form the state.

The morals have their sources from religion or consciences, throughout the 17th and 18th century the natural laws had moral foundation and the laws were linked with the morals.

It was during the nineteenth century that Jhon Austin made a statement saying law had nothing to do with morals. He then defined law as the command of the sovereign. Further Kelsen argued that only legal norms were the subject-matter of jurisprudence, he had excluded all other considerations which included morals.

Law And Morality; Distinction

Morality usually furnishes the criterion for the proper evaluation of our interests, whereas law marks out the limits within which they ought to be confined. It is a widely accepted fact that both law and morals have distinctive elements. In the view of Vinogradoff, law is clearly distinguishable from morality. The object of law is the submission of an individual to the will of organized society while the tendency of morality is to subject the individual to the dictates of his conscience.

Whereas Pollock says, though much ground is common to both, the subject-matter of law and ethics is not the same. The field of legal rules of conduct does not coincide with that of moral rules and is not included in it and the purposes for which they exist are different. Duguit was of the view that, Law has its basis in social conduct when morals go on with intrinsic value of conduct. He provided that the legal criterion is not an ethical criterion.

According to Pound, both laws and morals had a common origin but they diverged in their development. Bentham says law has just the same centre as morals but it has by no means the same circumference.

Relying on the views of Arndts, Law and morality can be differentiated as follows:
  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 insofar as he lives in community with others; morals give a guide to lead him even if he were alone.
  3. Law has to do with acts insofar as they operate externally, morals look to the intention- the inner determination and direction of the will.
  4. Law governs the will so far as it may by external coercion; morals seek a free self-determination towards the good.

H.L.A Hart has referred to four cardinal features which are designed to distinguish morality not only from legal rules but also from other forms of social rules. The features relied on by Hart are importance, immunity from deliberate change, voluntary character or moral offences and the form of moral pressure.

It can be concluded that legal rules do require external conducts and are indifferent to motives, intentions or other internal accomplishments of conduct, whereas morals do not require any specific external action but only a goodwill or proper intention or motive.

Law And Morality; Linkage

In the ancient time morals and laws were considered as one and the same. In the current period though law and morality have several distinctions yet the same are not completely different or distinct. A relationship can be established between morality and law on three grounds; I) morals as the basis of law II) morals as test of positive law III) morals as the end of law.

It was the view of Stammler that jurisprudence depends much upon moral ideas as just law has a need of ethical doctrine for its complete realization. Positive law and just law correspond to positive morality and rationally grounded ethics. There's no difference and if any, it is only the difference of manner in which the desire for justice presents itself.

Whereas H.L.A Hart believes that there are several relations between law and morals. He was of the view that a legal system must exhibit some specific conformity with morality or justice or must rest on a widely diffused conviction that there is a moral obligation to obey it.

Dean Roscoe Pound has provided with four stages in development of law with respect to morality:
  1. The first stage is a stage of undifferentiated ethical custom, customs of popular action, religion and law. Analytical jurists called it the pre-legal stage in the development of law and law and morals were the same thing. They were the two faces of the same coin,
  2. The second stage is that of strict law, codified or crystallized which in time is outstripped by morality and has not sufficient power of growth to keep abreast.
  3. The third stage is that of infusion of morality into the law and reshaping it by morals. In that stage both the ideas of equality and natural law are potential agencies of growth.
  4. The final stage is that of conscious constructive law-making, the maturity of law, in which morals and morality are for the law maker and that law alone is for the judge.
Thus despite of the fact that law and morals have had their differences, still it would be false to say that they have no connection at all. The very concept of law having been derived from morals from times immemorial provides that the foundation on which laws erupted are morality and ethics. Even if morality and law are distinguishable, morality still is an integral part of law.

Rule Of Law

It is the mechanism that encourages the equality of all citizens before the law. It also secures a non-arbitrary form of government, and specifically prevents the arbitrary use of power.
In general, the rule of law implies that the creation of laws, their enforcement, and the relationships among legal rules are themselves legally regulated, so that no one including the most highly placed official is above the law. The legal constraint on rulers means that the government is subject to existing laws as much as its citizens are.[2] Rule of law contemplates governance by laws and not by humor, whims or caprices of the men to whom the governance is entrusted for the time being[3].

The rule of law has three basic and fundamental assumptions; one is that law making must be essentially in the hands of a democratically elected legislature; the other is that, even in the hands of a democratically elected legislature, there should not be unfettered legislative power, for, as Jefferson said: "Let no man be trusted with power but tie him down from making mischief by the chains of the Constitution; and lastly there must be an independent judiciary to protect the citizen against excesses of executive and legislative power.

What is a necessary element of the rule of law is that the law must not be arbitrary or irrational and it must satisfy the test of reason and the democratic form of polity seeks to ensure this element by making the framers of the law accountable to the people.

Wherever we find arbitrariness or unreasonableness there is denial of the rule of law. That is why Aristotle preferred a government of law rather than of men. 'Law', in the context of the rule of law, does not mean any law enacted by the legislative authority, howsoever arbitrary or despotic it may be.[4].

British Jurist A.V Dicey propounded the Doctrine of Rule of Law in 1885 where he presented three distinct yet kindred ideas in Rule of Law:
  1. Absence of arbitrary power: No man is above law. No man is punishable by the government merely by its own fiat except for breach of law established in an ordinary legal manner before ordinary courts.
     
  2. Equality before Law: Everyman whatever his rank or condition, is subject to the ordinary law and jurisdiction of the courts. No man is above law.
     
  3. Individual Liberties: The general principles of the British Constitution, and especially the liberties of the individual, are judge-made, i.e. these are the results of judicial decisions determining the rights of private persons in a particular case brought before the courts from time to time.

Morality

On the other hand morality solely deals with the conscience of the people in the society with respect to whether or not a particular conduct is right and wrong or good or bad. Morality usually furnishes the criterion for the proper evaluation of our interests.

Morality in Confucian thought contains rich meanings as it refers to personal morals, rules to coordinate interpersonal relationships, ways to run a country, etc[5].

Moral law is a system of guidelines for behavior. These guidelines may or may not be part of a religion, codified in written form, or legally enforceable.

For some people moral law is synonymous with the commands of a divine being. For others, moral law is a set of universal rules that should apply to everyone. The source of morality is usually considered to be natural law and God's instructions through sacred documents. Morality may be religious or moral therefore, it is a very subjective concept.

Morality In Rule Of Law

Ronald Dworkin has argued that both laws and constitutions are unavoidably rooted in political and moral principles. The law is not derived logically from accepted true moral principles. Rather, it is established by legislatures that come to agreement on public rules that are shaped by a political consensus about right and wrong[6].

A close link exists between morality and the rule of law, since morality complements the rule of law. At the same moment it should still be considered a casual bridging between the both, as laws are not made out of moral principles, rather, they are established and shaped by a legal consensus of right and wrong. And even though morality is ultimately involved in making and modifying the law, it is never legally binding and does not have constitutional value.

Rule of law prioritizes the supermacy of law when morality prioritizes the moral values and consciences of the subjects of the state. For instance a man is under no duty to help a beggar or the distressed and can neglect his sick and old parents without the fear of any legal or penal consequences but morality does not allow a person to do so as it amounted to undesirable conduct condemned by morals and ethics.

It is a debatable fact that laws have a marginal origin from the morals and ethics derived in the society which initially monitored the conduct of people, but morality solely can't be the basis on which law has been derived. An acceptable statement is that both morality as well as rule of law have adapted to the development of society.

What seems right from the morality point of view may be contrary when viewed from the point of rule of law. When a person tries to feed a needy person, by means of theft solely for the purpose of feeding that needy person, morally the act may be justified yet the same may not be the case under rule of law. Because under the concept of rule of law, a person committing theft with a bona fide intention is as similar as a person committing the same with mala fide intentions. The Rule of law views everyone on the same footing, and be it done with a bona fide intention yet no one is above the law.

On another instance a person committing a murder may be acquitted by the court under prevalent laws and the same may be justified by the court but morally the same doesn't confer justice to the dear ones of the deceased.

Therefore morality has a marginal presence in rule of law whereas it is highly contradictory of the same.

Conclusion
Various jurists place morality and law on same footing when an ample amount of them say that they are distinct. But law and morals act and react and shape each other. In the name of justice, equity, good faith and conscience, morals have infiltrated into the fabric of law.

Moral considerations play an important role while making law, interpreting and exercising judicial discretion.
The presence of morality in the rule of law is a highly questionable topic as on one end the law, supremacy of which is highly spoken of in rule of law has its derivations from morals when at the other end the same morals are only partly adapted in the course of practice or application of such law.

End-Notes:
  1. Rule of Morality vs. Rule of Law, Establishing a set of values to compare the civil service ethos in China and the Netherlands
  2. Rule of law, Political Philosophy, Naomi Choi, https://www.britannica.com/topic/rule-of-law
  3. Kumari Shrilekha Vidyarthi Etc. vs State Of U.P. And Ors, 1990 SCR Supl. (1) 625
  4. Kumari Shrilekha Vidyarthi Etc. vs State Of U.P. And Ors, 1990 SCR Supl. (1) 625
  5. Rule of Morality vs. Rule of Law, Establishing a set of values to compare the civil service ethos in China and the Netherlands
  6. Morality and the Rule of Law, Noel B. Reynolds, Brigham Young University

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