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Law And Morality: Idealistic and Pragmatic Theory

If the law lags behind popular standard, it falls into disrepute; if the legal standards are too high, there are great difficulties of enforcement.- Paton

Introduction
A time once was present when society was governed by morals that were laws and there was absolutely no difference between law and morality, though a distinction was made later as privy council supreme court differentiated between legal and moral injunctions as regulatory and obligatory rules. Greeks and romans in Europe observed the natural law as the basis of law. Middle Age's christians like Aristotle considered morals as the basis of law.

During the 17th and 18th century law saw changes and theories of natural law became foundations after the reformation difference was made where states became basis or source of law. During 19th century when Austin said that “law is a command of sovereign” a complete distinction was made and law was separated completely from morals whereas Kelsen found legals norms to be subject matter of jurisprudence and he excluded morals from scope of law.

The sociological approach of jurists studied morals indirectly and traced origin and development of law while including morals. The goals of law are submission of a person according to the will of the society and concerns with social relationship of men whereas the goals of morals are to bring individual under the submission of his conscience and concentrates on individual by recognising his obligation in the society and not society. Eventually as law developed more and more according to the changing needs of the society, law and morals grew apart but still managed to stay entwined.

The famous Patrick Devlin and Herbert Hart in mid-20th century debated about the relationship between law and morality addressed the limits of the criminal law regarding a proposal of the Wolfenden Committee to allow and decriminalize male homosexual activity in private and talk about prostitution. The original exchanges and subsequent contributions to the debate have been significantly constrained by the terms in which the debate was framed: a focus on criminal law in general and sexual offences in particular; a preoccupation with the so-called "harm principle" a sharp delineation of the realms of law and morality, and a static conception of the relationship between them.

The difference between idealistic and pragmatic approach has allowed laws and morals to evolve along with traditions in Jurisprudence. It can be said that the more liberal and free is the pragmatic theory the more rigid and non-changeable is the idealistic one. But in contemporary times it is evident that pragmatic approach is the one which takes the cake, though the importance of idealist approach has not been lost so as to maintain the basic identity of society, law and morals.

What are morals and law?

Morality is a cluster of regulations that guides or gives out principles for the process of decision making and regulating the behaviour in the society. According to it, a man is required to behave in a certain manner which is pre-coded— an ethical code which has been accepted by traditions. This moral obligation may come naturally and it is variable as it changes for man to man and age to age. It regulates a man's whole life's inner and external actions. They are not sanctioned by state but are choice of a man's conscience and every man his own different principles.

Law is a set of rules which governs a society which is imposed by a sovereign or a state, under which all citizens are to abide by it. Law can be considered in 3 senses. Firstly law as rules, being sense of particular legal regulations against rape, murder, negligence etc., second will be the sense of regulation standards and behaviour including business, politics, morality and philosophy etc. and thirdly law as a system which is sense of being systematic and having institutional features such as government. All three senses are shaped by value and socio-economic factors.

Law is a central phenomena in our lives which regulates, protects and guide people and we encounter it every day without have a though about it. It is the medium for standards of justice and regulations of conduct origin in both regulatory and non-regulatory forms. It mirrors other regulatory standards such as governmental policies, it's organs and professional standards. There is an internal two way connection between law and society but humans try to compartmentalise and put boundaries on law and try to separate it from disciplinary values, politics, economic etc but rather law reflects all these aspects.

How Law and Morality Correlates?

  • Morals as basis of law and natural law:

    as we all know in ancient times there was no clear distinction between law and morals and all rules which regulated human actions came from only one source i.e, Dharma for the indian scenario and any one who acted otherwise was liable for Dandh i.e, punishment. There was supernatural fear and natural lawwas prevalent and when states were formed they implemented such pre-existing rules for the order in society and picked up and enhanced or modified those rules which were absolutely essential and turned them into a law and kept on creating new ones as the requirements came as the society developed. Some of this laws were even codified in India in Dharmashastra, Dharmasutra, Manusmirti, Arthashastra and purely ethical codes in Ramayana and Mahabharata. All these books contained moral and sanctioned codes of law. This proves moral and laws have same source of origination and evolution made a distinction between them.
     
  • Moral as a test of law

     many jurists believe that law must comply with morals similarly as when natural law was popular as it was considered to be the highest form of law and hence it was believed that positive law must conform with the former. Though today such view is not relevant and at present law is not tested on the basis of morality by it tested on the basis of equality, liberal, justice and logic and reason. Though when we dig deeper laws still conform to morals because morals are an important part of society and law is enormously related to society.
     
  • Morals as the end of law:

    several jurists opine that morals are indirectly the end of law and the purpose of law is to guarantee effective administration to provide protection and justice to people. The basis of morality often serves as the definition of idea of justice and this proves morals are end of the laws

How law and moral Differs?

As we have discussed in old times law and morals were one and the same thing but eventually morals basis became more religious, traditional and customary in middle ages and in post-reformation era thinkers made distinction between law and morals efficiently. The most famous distinction of law and morals were made by Ludwig Arndts von Arnesberg.

Law concerns itself with a person's individual liberty and regulates the conduct of man as long he has memberships of a community. Law is enforced and implemented by external coercion. Whereas morals concerns itself with the collective idea of welfare and what is good behaviour and what is bad, as they guide the actions of man they appear to be of free will of an individual.

The Hart-Delvin Debate:

The relationship of law and morals is a complex one which has been discussed and debated in numerous fields like law, religion and psychology. The most famous debate was instigated by the recommendations and investigation of the Wolfenden Committee to allow homosexuality and prostitution in society on which Hart and Delvin tried to determine the relationship, they each took one side and put highly contradictory arguments. The committee said that it was not the duty of law to solve issues of immorality.

This gives to the question that:
Why does law defend citizens against acts such as harm and indecency? Hart and Devlin had clashing arguments because the interpretation of what is harmful to people is relative.

The recommendation of committee were emanated from the utilitarian principles argue that homosexuality should be legalised due to freedom of choice and privacy or morality, as law should not have power to influence and interfere lives of common people.

Lord Devlin was against the notion of criminalising homosexuality which was pragmatic approach and but in case of Prostitution no such approach can be used as it is highly controversial because it may be legally right but it is morally wrong, if it is criminalised many women who go to such business willingly could lose their income and based his argument on the basis of Public Morality. H L A Hart opposed the views of Lord Devlin by making a recourse to John Stuart Mill?s Harm Principle which was more of a idealistic approach.

On the other side Hart referred to John Mill's harm principle and argued that law should not adhere to populism principles. Though based on Mill's teachings Hart supported committee's recommendation to legalise prostitution and homosexuality but never agreed to Delvin's argument of morality being guided and determined by law.

What is Idealistic and Pragmatic Approach?

Idealistic approach:
Plato is considered to be the father of idealism wherein the philosophers believe that it core issue it that ideas are only true reality and worth knowing. The focus if one logical reasoning of mind while finding truth, justices and beauty. The approach believes in education to develop individual's ability and complete moral order to serve society.Idealism is the philosophy that believes the ultimate nature of reality is ideal, or based upon ideas, values, or essences. The external or real world cannot be separated from consciousness, perception, mind, intellect and reason in the sense of science. It believes that moral Codes of law and regulations should remain as they were since old time for better order in society and if anything alien is introduced the society would turn into chaos.

Pragmatic approach:

it is believed that the idealism of period between 1781 and 1831 contributed in the development & formation of pragmatism. A pragmatic approach focuses on a persons's decision making with the help of a real-world situation, wherein the first step is to identify and analyse a problem and finding its solution which is most logical and liberal. This approach tries to implement and mix new judicial and legislatives laws with the traditional and cultural moral codes and try to make it less rigid and rudimentary like the idealistic approach. It believes that in a world where society keeps on changing, it is important to grow and develop our laws, morals and thinking along with it so that each and every member of society is recognised.

Analytical school of jurisprudence:

It was Sir Henry Maine who used the term analytical for the first time. The jurists of analytical school of law, also known as imperative school of law neither regard law as arbitrary command of a ruler nor as the creation of historical necessity rather law is the product of human reasons and its aim is to elevate and ennoble human personality, actions and morals. John Austin is regarded as the father of this school and he believed that only positive law (introduced by Bentham) is the subject matter of jurisprudence.

According to prior arrangement law was based on customs and morals but he subsumed all things from the definition of law. Under this school an analysis of the concept of civil law is done where study of various relations of civil law and other types of law is done,theory of liability, legal rights and duties is carried out. It investigates and dwells into the sceintific arrangement of law and truest find the legal sources from where the law originates. This study squires about different legal conception such as property, person, contracts etc. this theory is science of investigation, method, experimentation and reasoning of law. The pragmatic approach deals and correlates with analytical school due to the nature of approaches as they both apply prudence, logic, reasoning and analysis in finding the perfect solution for the problem..

Road from idealism to pragmatism in Contemporary times

How homosexuality and prostitution harms society, as discussed in the debate ? Here are few points on this issue where the Arguments of Hart and Delvin are given and how they turned out to be in the contemporary worlds by using the idealistic and pragmatic approach.
  1. Homosexuality:

    Families are crucial components of a society, therefore as according to statistics, domestic violence is more amongst homosexuals than heterosexuals. Homosexuality may lead to child molestations , drug/sexual abuse physical and mental illness which may effect families. In Netherlands data shows that homosexual marriages and relationships devoid children proper opportunity to develop as it effects emotional and psychological well-being of a child. Here Delvin stated that without rules, controlling immorality through law is like using rules to control a game, as gamers who play as they wish become non-existent. He believes that people have absolute freedom that is why social order eradicates from society and thus it is important to have a guiding moral code to ensure people do not cross boundaries, as any type of behaviour can lead to cause harm to society by destructing social cohesion.

    Devlin said that law should be used to prohibit certain conducts and offered solution to Dworkin who criticised him, saying that if any immoral act causes disgust and outrage then it endangers the wellbeing of the society and it is important to selectively safeguard privacy or morality.“If the public disapprove an immoral act, then the state should intervene by enacting a law to criminalise it.”In ancient times homosexuality was prohibited as incest and was considered disgusting but as the society evolved in the 21st century the Delhi high court in the case of Naaz foundation vs government of NCT of Delhi said that it is now considered as proper sexual freedom and morality which deserves a constitutional protection in the form of fundamental rights.

    “This case marks the triumph of Constitutional Morality over Public Morality hence giving a honourable burial to Devlin's Public Morality.”

    Section 377 deals with sodomy, bestiality and unnatural sexual relations. In the case only unnatural sexual relations were challenged wherein non penal vaginal intercourse was an offence which deemed to be discriminatory against the LQBT community as the provision violated article 12,15,19 and 21 of the Indian constitution. The court applied the doctrine of reading down, the provision violated the intelligible differential test and public morality practised by state was held to be unconstitutional.

    “In the twenty first century the Supreme Court using the pragmatic approach had been following the Right based on jurisprudence in M Nagendra Rao & Co vs State Of A.P and I R Coelho vs State Of Tamil Nadu & Ors cases where even Article 14,19,21 were given a possibility of being included in the Basic Structure. Following the judgment in Anuj Garg case the Supreme Court has constantly evoked the deeper judicial scrutiny test where the laws that perpetuate „oppressive , cultural norms? and target minorities and vulnerable groups. Finally in Navtej Johar vs Union Of India Ministry Of Law the Supreme Court of India unanimously held section 377 to be unconstitutional and decriminalised the non penal-vaginal intercourse.”
     
  2. Prostitution:

    it degrades social system of justice in many paths such as first of all it devalues and in-dignifies women because it encourages men to view and treat them as objects of sexual urges. Secondly because of it, the importance of respect, love, commitment and successful marriages and relationships gets undermines because it promotes promiscuity. Thirdly it affects financial well-being of the families are lot because all of it is drained in health and medical matters, as it can also be reason of spreading sexually transmitted diseases.

    Women under prostitution are brought with force where they are exploited and experience stigma because it is an immoral act. It also destroys families and marriages and causes lack of faith and trust. Delvin said that law only should intervene when people become intolerant or disburser with regards to immoral acts and hence they should be criminalised. In idealistic sense, the system prostitution has been prevalent in India since time immemorial as even the stories of celestial angels like Rambha, Urvashi and Menaka are prevalent in indian mythology were it talks about the impeccable beauty and feminine charms.

    The poet Kalidasa's greatest drama of Shankuntala Abhiguan and the system of guest prostitution during the Aryans rulers reflect the prevalence of prostitution work and even many rulers used such prostitutes to spy and kill for them. Prostitution was common during the reigns of Kaurav and Pandava, Gupta dynasty, Mughal emperors and even British colonial era and the condition of women did not get better as they were not trained for anything professional and they had economical burdens. India's poverty is the main reason why in 21st century the courts can not criminalise and hold the consensual prostitution workers and system as a criminal offence.

    But the government enacted the Indian Penal code & Immoral traffic prevention act 1956 to prohibit and criminalise the evils like Abduction, Devdasi system, Human Trafficking Rape, Marriage prostitution where husbands use and force their wives to perform such acts. Children of women in prostitution is still an issue which is difficult to address due to its nature. Because of all this violence against women is not able to bring itself down even though prostitute workers suffer great deal of social and emotional turmoil.

    Other few instances on idealism to pragmatism
     
  3. Sati Pratha:

    Women earlier were morally required to sit on the pyre with the their husband if she outlived them and if she denied, she was made to sit forcefully and die which was ultimately against every fundamental rule even before the constitutional rights. But today it infringes Article 21, 14, 17, 19 etc. This system was abolished and banned in 1829 by the Bengal Sati regulation in British India and the famous Raja Ram Mohan roy was the champion of banning sati pratha. The government later passed the Commission of Sati Prevention Act 1987 to prohibit this practise at all costs (Onkar Singh etc vs state of rajasthan). Similarly the practice of johar also diminished as the society developed.
     
  4. Child and widow Marriage:

    earlier it was common and idealistic to marry girls of younger age to marry an adult man and sometimes arrange a marry in their childhood. Though it is pragmatically prohibited today but in some rudimentary rural areas it is still practised below the noses of administrations as the government prohibits this practice under Child marriage restraint act 1929 and prohibition of chil marriage act 2006. The 1940s case of Emperor vs Fulabhai Bhulabhai Joshi proves the above point. This practised caused a great deal of turmoil in a girls life as it leads to premature sexual relations, conceive of child in a younger age at which body was not ready for such a strenuous act and hence it resulted in death at child and if her husband dies first due to age factor, she may be required to sit on the pyre at such a young age or she may has to live her life as a widow. Re-marriage of a widow was also customary prohibited but later the society evolved and allowed it. The Hindu Widow Remarriage Act, 1856 allowed women in all jurisdiction to legally get married again.
     
  5. Female infanticide, Dowry and Female education:

    female child was considered to be a burden due to practises of dowry and other sociological factors and therefore in medieval times and even today in some parts of India the birth of female child is deemed as dreadful and hence any infant female born was killed after birth and if the gender is known during the pregnancy (inside the womb) the mother was made to abort the child, which was injurious to mother, child and the society. To prohibit this the government in contemporary times enacted the Female Infanticide Prevention Act, 1870bans (S.K. Harison v State of Delhi ) and criminalises such an act of killing and Prohibition of Sex Selection)Act, 1994 prohibits sex-selection or sex disclosure of the foetus after birth as discussed in many cases like Dr. Varsha Gautam W/O Dr. Rajesh vs State Of U.P. The law also criminalises the abortion after certain weeks of pregnancy. The evil of dowry which was very prevalent in India and is still used in some parts of India by blindfolding the law has been prohibited under the Dowry Protection Act 1961 where the punishments have been made rigorously strict as stated in Kamlesh Panjiyar @ Kamlesh panjiyar vs state of Bihar. Right to education was incorporated in Article 21A in the constitution to provide basic, free and compulsory education to the children till 14 years of age.
     
  6. Punishments:

    In ancient times if a person commits an offence they were to be prosecuted with “Dandh”. In those idealistic days the age of the offender didn't matter and they all were given same severe degree of punishment which was established by the rulers and their laws of the land. But today in contemporary times the situation has changed. The age, soundness of mind and maturity level is accounted while prescribing a punishment. For example : if a teenager murdered a man back then he was to be given a sentence which is common for every one, it may be hanging, life sentence etc, to but today if teenager under 18 years of age commits such an offence then he or she has too be prosecuted in a juvenile justice court, with closed chamber proceedings and the police officers arresting the child has to wear civil uniform instead of their Khakhi's. If found guilty the child is to be jailed in juvenile juvenile court, he cannot be jailed in common jails where adults are kept as discussed in many cases such as Pratap Singh vs State Of Jharkhand & Anr. Today if a child under 7 year commits a crime he is in most cases acquitted as the court determines his maturity level to be very low and they do not understand the consequences of their actions. Similar a person of unsound mind will be differently punished than of person of a sound mind.
     
  7. Issues in marriage:

    since old times it is prevalent that the bride has to be younger than the groom but this stigma is nowhere mentioned in any of the religious texts and hence it is something which is idealistically carrying on. The contemporary world has tried to remove this stigma by giving examples where groom was younger than the bride.

    Another example which was widely prevalent in all over the world was bigamy:
    a husband can have more than one wives. Almost all male rulers, common man and even Gods were married to more than one wives. Sometimes the wives (queens) held power and respect on the basis of her husbands (kings) preference, the most favourite wife had the utmost respect and privilege and the least favourite didn't. This stigma of idealism is said to broken pragmatically by the epic tale of Mahabharata where Draupadi had Five husbands i.e, the 5 Pandavas. In today's world bigamy has been prohibited by most of the religions like Hindu, Christians etc. (Bhaurao Shankar Lokhande v. State of Maharashtra) and governments and only few Muslims have the legal right to marry unto 3 wives.

    But we if look at Goa state civil court old judgement it says that if a wive does not produces any child till the age of 25 years or she couldn't produce any male child till the age of 30 years then the husband is allowed to perform bigamy and get married to a second wife legally. This was influenced with the old philosophy that a male child is necessary for all religious and hereditary purposes. But today the idealistic rule of a man is to still take care of his wife financially, socially and sexually and provide her maintenance even after he is divorced.
     
  8. Marital rape:

    The idealistic view was that if a man marries a women he has the right to have sexual intercourse with his wife even though the wife does not gives her consent for the same. But in contemporary world marital rape has been criminalised by section 375 as said in the matter Sree Kumar vs. Pearly Karun, as it was against the constitutional right under articles 14, 21 and 15. Here we are talking from the perspective of women because they are the ones which are affected the most, under article 14 a male also have the same pragmatic rights.

“In the matter of Indian Young Lawyers Association vs The State Of Kerala the Supreme Court has struck down a rule that disallowed girls and women in the 10-50 age group from entering the Sabarimala temple in Kerala. Chief Justice Dipak Misra-headed Constitution bench in a 4-1 verdict said the temple rule violated their right to equality and right to worship. The old rudimentary idealistic practice was held unconstitutional and the pragmatic view was to allow women to enter the temple but still the supporters of idealistic notions were agitated and tried to retaliate by blocking the roads to the temple and checking any fertile aged women on which the court raised the voice.”

Conclusion
Prevention is better than cure— the saying goes perfectly as in todays world pragmatic approach or more relevant and compatible with today's developed generation and society. In today's world if try to use idealistic approach it will cause a great deal of chaos and inconvenience. The idealistic approach focuses on eliminating the problem without reaching it's core issue whereas pragmatic approach tries to identify—analyse—solve the problem by understanding the basic reason of it's origin.

The latter solves problem on a permanent basis while reforming the conditions whereas the eliminated problem in the former case may return in future because the core problem at the origin was not solved and hence it is temporary. Few Idealistic approach acts, at today's scenario leads to violation of various provisions such as article 14,15, 19, 21 of the constitution and hence pragmatic approach is more useful and convenient in contemporary world.

Going from idealism to pragmatism is a matter of evolution as pragmatic approach has ties to idealistic approach. Generally the difference between the two approaches blur because idealistic approach was gone through a transforming evolution, changing it into something prime to influence and make it mix with pragmatism. Approach of jurisprudence is mainly concerned with the end of law and morals as jurisprudence is the study of law which influences and affects the lives of people.

Bibliography:
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  • Moka-Mubelo W. (2017) Law and Morality. In: Reconciling Law and Morality in Human Rights Discourse. Philosophy and Politics - Critical Explorations, vol 3. Springer, Cham. https://doi.org/10.1007/978-3-319-49496-8_3
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