The concept of rights is indeed an abstract one. While some rights are written
and legally enforceable, the others are unwritten and non-enforceable. However,
there exists rights for every person to protect their interests. A right once
given, is irrevocable. While some rights are given to the citizens through the
operation of law, some rights are protected by the law. Either way, the rights
of a man cannot be infringed or violated. This leads to a question of what these
rights are based on, legality or morality.
Law itself can be viewed from polar opposite perspectives when seen from the
different schools of law. On one hand, when the positivists believe that the
concept of law is independent of morality, the naturalist school believes that
law and morality are two sides of the same coin.
Austin explains the concept of rights by stating that, a party has a right when
another or others are bound or obliged by law to do or forbear towards or in
regard of him. This understanding of rights is not widely accepted as Austin
did not consider the interests of the persons. However, other positivists such
as Salmond has defined rights
interest which is protected and recognized
by the rule of law. It is an interest which has its duty and disregard of which
On the other hand, jurists belonging to the natural school such as Hugo Grotius
defined rights as Civilians call a faculty that Right, which every man has to
his own�This right comprehends the power, that we have over ourselves, which is
called liberty�It likewise comprehends property�Now anything is unjust, which is
repugnant to the nature of society, established among rational creatures. Thus,
for instance, to deprive another of what belongs to him, merely for one's own
advantage, is repugnant to the law of nature.
Another famous jurist, John
Locke wrote that all individuals are equal in the sense that they are born with
certain "inalienable" natural rights. That is, rights that are God-given and can
never be taken or even given away. Among these fundamental natural rights, Locke
said, are "life, liberty, and property."
To look at a more recent take on the concept of rights, Horace Gray defines
rights as that power which the man has, to make a person or persons to do or
restrains from doing a certain act or acts so far as the power arises from
society imposing a legal duty upon the person or persons. He further states that
the right is not the interest itself, it is the means to enjoy the interest
While the definitions proposed by the jurists from two different schools may
sound opposing or ambiguous, one must understand that rights are primarily of
two types: a. Legal Rights and b. Moral Rights. Legal rights derive their origin
from the positivist school of thought and moral/natural rights derive their
source from the natural school of law. It is said that every right is associated
with a wrong, and that such rights can be enforced when there exists a wrong. Similar to rights,
'wrongs' also are of two types: a. Legal wrong and b. Moral
According to Salmond, 'wrong' per se can be defined as any act contrary to the
rule of right or justice. Many at times, 'right' and 'justice' are used
interchangeably as it is through the enforcement of rights that one gets
justice. While a legal wrong is any act violating a legal right, a moral wrong
is an act violating moral right. Legal wrongs have legal remedy, but moral
wrongs are simply against morality and do not have any legal remedy.
put it, a legal right is an interest recognized and protected by a rule of legal
justice - an interest the violation of which would be a legal wrong, done to him
whose interest it is, and respect for which is a legal duty". "Moral" or
"natural right" means "an interest recognized and protected by a rule of natural
justice - an interest the violation which would be a moral wrong, and respect
for which is a moral duty".
The distinction between moral rights and legal rights can be established through
the sanctioning behind them. While moral rights do not have any legal remedy or
a legal sanction behind them and merely depend on the morality of the society,
legal wrongs can be tried under law. Therefore, all violation of legal rights
has legal remedies. This gave rise to the maxim of ubi jus ibi remedium- 'where
there exists a wrong there exists a remedy'.
While the social morality has a major role to play in the formation of law there
will be certain laws that may go against the social morality. Such laws, though
immoral would still be legal. On the other hand, though certain acts or right
may be morally upright may not have the legal recognition and enforcement. Such
acts merely become moral rights.
Even though there are no laws to protect the
moral rights of people, the violation of the same will be socially prosecuted.
For instance, while alcoholism is not considered a legal wrong it certainly is
subjected to certain degree of social rebuke even today. On the other hand, even
though it was a known fact for women to be subjected to workplace harassment, it
was only in 2013 that a law was enacted.
The concept of morality cannot be defined. Each society and each era have a
varying meaning of what constitutes 'moral' and what doesn't. While, transgenderism was considered immoral and unnatural in the 20th century, a lot
of development has been witnessed in the 21st century with respect to India. For
instance, giving them a legal recognition of a third gender. Therefore, what was
considered immoral for all these centuries, was finally recognized by law.
indicates that morality is dynamic and is always a result of social judgement
and that it has no objective metric to consider what is moral and what is not.
Bearing a startling difference is legality. Law, although a result of the
society it is subjected to, is static and clear. It cannot be changed according
to the whim of any and is highly objective in the eyes of all. Every person is
equal before the law and there wouldn't be any sort of discrimination or social
prejudice against any, unlike morality. The debate between legality v. morality
can be seen even today among the legal fraternity, as both have its own pros and
Analyzing The Position Of Law
Even centuries after the birth of natural law and positive law, the debate of
which school of thought is more apt in the current world persists. The new-found
theory of legal positivism was based on the underlying belief about a world with
complete independence and freedom of thought and expression.
The emergence of
this concept was fueled by those who believed in departing from theology and
feudalism, the founding stones upon which natural law was built on and decided
to divert humankind's potential into what was more tangible; the then current
realities that the world was built upon.
Law was separated from morality, unlike
natural law. And law was established as what is and not what ought to be. Law
was made more pragmatic, rather than idealized. However, it is first of
paramount importance to start with the inception of rights, i.e., the Magna Carta
The Magna Carta, 1215Magna Carta typically meaning the Great Charter is the first ever Charter of
rights in the world that listed down the civil liberties of people of
England under King John's reign. It was one of the greatest developments in
the Common Law system back then and has inspired a few of the greatest
political-legal minds the world has witnessed, such as Thomas Jefferson and
Mahatma Gandhi. One may wonder what led to the inception of this Great
Charter and what impact did it have on the people of England and the eras to
- History behind & the contributions of the Magna Carta:
In the year 1215, King John was the ruler of England. He was infamously
titled The Evil King. Throughout his tenure as the King of England, King John
continuously made bad decisions and his practices were extremely immoral. He was
known to be one of the worst kings in history. He imprisoned his wife, starved
his rivals to death among many more such immoral acts. All of his immoral
actions such as heavy taxation was covered by the law under the rule of Rex Non Potest Peccare;
King can do no wrong.
This is a classic example of how law
can be valid yet immoral. Having undergone all the cruelty, the barons revolted
against the King and he was finally forced to come to a compromise with the
barons, as the country went to civil war. The result of such compromise was the
Magna Carta, where the liberties of free men was recognized for the first time.
While the 800-year-old law may seem outdated, it undoubtedly laid down the
foundation for many international legislations and conventions, most importantly
the Universal Declaration of Human Rights, 1948. The Charter also has some
relevant laws that is applicable even till date. One such provision is that all
'free men' had the right and access to justice and a fair trial.
laid down some of the most quintessential elements of any legal system today,
such as Due process of law, rule of law and supremacy of the law. The advent of
this Charter meant that all persons, irrespective of their status on the country
would be governed by this law. This threatened the then Pope and he declared
this Charter to be invalid. The country soon went into war and upon the death of
King John, Henry III became the heir, and the Magna Carta was reinstated.
This very Charter along with the tenets of John Locke became the source of
inspiration to the 3rd President of the United States, Thomas Jefferson. His
United States Declaration of Independence was heavily influenced by natural
law and the concept of rights as laid down by John Locke and this Charter. While
the Charter was off to a rough start, it certainly did instill a sense of right,
liberty and freedom in the minds of the people, which even today is held in high
- Legality v. Morality in the Magna Carta:
Positivism and naturalism are words of many meanings. While some meanings
indicate a startling difference, some in fact show how one has affected or
resulted in the inception of the other. For instance, the most positivist
principle of law, nulla poena sine lege, originated in natural law
In the common law, it is said that this principle of nulla poena
sine lege can be traced back to the Magna Carta's requirement of judgment per
legem terrae; law of the land, although this requirement may have had only a
limited, procedural connotation. It is believe by many that Positive law was
in fact a newer form of natural law and not an opposing school of thought.
Firstly, in 1215 the law of nature was known and accepted as a source of law in
England, as it was on the continent. The texts of all the laws back then
begin with a disclaimer emphasising on the importance of natural law. Magna
Carta, though a result of a compromise of a bad king, was also a result of the
law taught to the people back then.
For instance, Gratian's Decretum from Circa
1140, the first book of the classical canon law of the church, states the same
principle, adding specific examples of areas where the canon law had followed or
even borrowed directly from the law of nature. Therefore, it can be gauged
that the provisions contained in the Magna Carta weren't new or unique. It was
merely a consequence of what was taught in the English schools in the century
leading up to Magna Carta.
Secondly, the fact that the law of nature had a place within English
jurisprudence itself is also amply demonstrated by the treatise on the laws and
customs of England, known as Bracton. Its text stated and discussed the law
of nature in much the same terms that are found in Justinian's Digest.
Thirdly, it is evident through the provisions contained in the Magna Carta that
the clergy and the Church had a huge role to pay in its formulation.
Specifically, clauses 1 to 38 highlight the involvement of clergymen by
protecting their rights and interests to the fullest. Other clauses in the
document also tracked the contents of the European lus commune.
We know also
that a part in this process was played by Stephen Langton, Archbishop of
Canterbury. Some of the preliminary Articles of the Barons were referred to
him and other bishops for clarification or amendment. At the time, more than
half of the men who served as judges in the royal courts were in holy
orders. Copies of the Charter were deposited in each English diocese,
probably in the cathedral churches. This degree of clerical involvement led
to clauses protecting the clergy and it easily might have led to
incorporation within its clauses of principles drawn from the law of nature
Therefore, it can be made clear that despite some rights underwent amendments to
be perceived more positivist in nature, all the rights in its inception were
formed based on the naturalistic approach, trying to safeguard the moral rights
of the people of England through the operation of law. Conclusively, the Magna
Carta was more inclined towards morality rather than legality.
Landmark IncidentsThrough the centuries, the Judiciary has witnessed various incidents where the
courts and the justices have been conflicted between legality and morality. Some
of such incidents can be seen below, which would aid us in the better
understanding of what would hold greater importance in the case of rights.
Nuremberg Trials:One of the most iconic events in the history of legal development is the
Nuremberg Trials. During the Nazi reign in Germany, there were many inhumane
anti-sematic laws in existence formulated by the Nazis, and these were never
considered to be invalid. Nazism was a clear example of positive law in
action; a situation wherein there was one sovereign, and all the subjects
were to obey the sovereign, the non-conformity of which would lead to
All of those laws and the immoral and criminal actions of the Nazis against
the Jews were validated and legalized, thereby completely encroaching upon
the moral rights
of people. It goes without saying that these laws were immoral but were still
considered to be binding. The very same point was debated by Hart and Fuller.
The naturalists like Lon Fuller believed that immoral laws are not laws. While
positivists like H.L.A Hart believed that morality has nothing to do with the
validity of laws, because law is what it is and not what it ought to be.
Morality was an ideal, but law was real, and hence despite the laws of the Nazis
were immoral, it was still valid. And although the rights of the people were
being encroached upon, there was no legal remedy as according to the positivist
school, there existed no such thing as legal right, and hence there were no laws
to sanction the violation of such rights.
However, the Nuremberg trials which was a consequence of the Nazi atrocities
relied upon Naturalism and not positivism, and this is where the world witnessed
a revival of Natural Law. This was done in order to retrospectively hold the
Nazis liable for their immoral and inhumane actions against the Jews, which were
previously not illegal under the International Law.
The Nuremberg Tribunal, created as the judicial arm of the United Nations to try
leading Nazi war criminals, worked from fundamentally Austinian positivist
prepositions; namely that the validity of law comes from its creation by the
sovereign and that morality has no bearing on the substance of the law. The
Nuremberg trials presented internationally, for all to see, John Austin's
command theory and his separability thesis, or that legality and morality are
Despite there being a well-formulated International Law back then, as the
Nuremberg judges pointed out in 1946, 'The Hague Convention nowhere designates
such practices [methods of waging war] as criminal, nor is any sentence
prescribed, nor any mention made of a court to try and punish
offenders.' However, it was high time for humanity to prevail over
immorality. This ignited to what is today called as 'crimes against humanity'
and reignited the existence of Naturalism. Therefore, one can't be wrong if one
said that the Nuremberg trials redefined the International Law.
Even though criminal law is generally not applied retrospectively, the
retrospective application of a naturalistic approach became indispensable,
thereby proving that legal positivism was not something the society needed then,
and that rights of citizens had a lot more to do with morality rather than
Legality v. Morality in the Indian legal system:In a strict sense, legal rights are correlative of legal duties and are defined
as interests which the law protects by imposing corresponding duties on others.
But in a generic sense, the word right is used to mean an immunity from the
legal power of another, immunity is exemption from the power of another in the
same way as liberty is exemption from the right of another. Immunity, in short,
is no subjection.
One would look at the various legal and moral issues posed in the various Indian
statutes. To begin with gender neutrality, the purpose behind gender neutrality
of sexual offences under the IPC is not to desexualize the offence but to
incorporate a holistic understanding of the nature of the offence beyond the
lens of gender. The rights of persons under IPC are clearly not gender
inclusive. For instance, in the case of Sec 375 of the IPC, 1860, it is always
the woman who is the victim and the man, the perpetrator. The definition of this
Section is too narrow to bestow upon any other gender the right to file for
justice under this Section.
Along with this, Sec 354 also extends only to women.
While this does help in uplifting the weaker section of the society, that is
females; it certainly comes at the cost of the right to justice that men have
under such sexual offences. While the society thought differently a few decades
back, it now undoubtedly demands for gender inclusivity in the laws due to the
changed perception of morality.
While, it was even unthinkable for any woman to
misuse the legal safeguards, it has today become a very common malpractice.
However, due to the lack of laws, though such malpractices are immoral, there
are no laws to prove it otherwise.
Similarly, although men and transgenders
undergo such immoral acts of sexual crimes, thereby violating their moral right
of outraging ones modesty, there are no laws to protect them. Similar to the
positivist approach, the male and transgender victims have no legal remedy as
according to law there has been no violation of a legal right- ubi jus ibi
Moving on, to the POSH Act, 2013, is also applicable only to women. While the
Parliament justified their decision of including only women in this law by
taking the defence under Article 15 (4) of the Constitution, it forgot to
consider other victims of workplace sexual harassment. Men and transgenders are
also equally victims. Justice to one community shouldn't come at the peril of
the rights of others.
Here, once again although the male and the transgender
community suffer from workplace sexual harassment, there are no remedies or
legal safeguards as there exists no legal right that recognises such offences.
Every human being has the moral right to bodily autonomy and dignified life. The
same can be seen mentioned even in the Universal Declaration of Human Rights.
However, such gender exclusive laws violates such quintessential moral rights of
men and transgenders thereby giving them no remedy or a remedy short of
On the other hand, one can proudly say that the Constitution of India is one of
the most well drafted laws that the world has witnessed. It is mostly based on
the natural school with all the laws safeguarding ones moral rights. Part III of
the Constitution that deals with the Fundamental Rights are very inclusive and
considerate. It takes into consideration all stakeholders of a country while
formulating as well as enforcing such rights.
While Articles 14 and 21 (due
process) are absolute rights, with no restrictions, Article 19 is imposed with a
lot of restrictions. The fundamental right to freedom of speech and expression
does not come at the cost of national integrity and security or threat to the
harmony of the nation. Therefore, as long as one exercises ones freedom of
speech and expression within the reasonable restrictions, there is no threat to
the legality or morality.
Adopting from the Magna Carta, the Indian Constitution
highlights due process as well as rule of law, and the Constitution is the
supreme most law of the land and must be abided by all, irrespective of
anything. This clearly indicates that India is a naturalistic country and our
Constitution follows natural law thereby emphasising more on the morality of
rights rather than legality. The laws in the Constitution upholds morality
Legality v. Morality in other Jurisdictions:Many Middle eastern countries like Saudi Arabia, Dubai, Syria among many more
have a very regressive positivist approach to law. The Saudi government, which
enforces sharia law under the absolute rule of the House of Saud, have been
accused of and denounced by various international organizations and governments
for violating multiple human rights within the country. There exists no rule
of law or due process of law.
A lot of inhuman practices are followed under the
name of justice. What makes it even more pitiable is that there exists no
women's rights. Women are merely treated as a possession or a property which can
be owned by the rich men. Saudi Arabia is literally undergoing a human rights
crisis, and nothing can be done. This country is a clear example of what would
happen if rights are merely legal and positivist instead of moral and
naturalist. All immoral acts of any person can be covered under the pretext of
legality with absolutely no consideration of morality.
North Korea is another distasteful example of a positivist country. The people
of North Korea absolutely have no rights. They are not allowed to have access to
the internet, they are not allowed to travel to most countries, and most people
who try to violate such immoral laws are either executed or coldly murdered.
North Korea has become a hub for human trafficking due to the vast number of
people wanting to escape from the clutches of such dictatorship. All immoral
activities carried out by the Sovereign is completely absolved due to the
existence of immoral laws.
No person can enforce any right against the Sovereign
as there exists no such rights. And once again going by the positivist approach
to rights; where there is no legal right, there can be no legal remedy. And
therefore, North Korea has become a living hell to the many living there, due to
lack of legal rights, upholding morality.
Changing Morality Morality per se, has no specific definition by any philosopher due to its
extremely subjective and dynamic nature. What may be moral to some in
some areas may be 'immoral' to others in other areas. Sometimes what may
have been immoral for a very long time, may become moral over the passage of
time. Therefore, there is no particular metric to measure morality or to
decipher what constitutes moral and what constitutes immoral.
In light of this, for instance, off late the entire world has witnessed a sudden
rise in the social awareness of the LGBTQIA+ community, in specific India. A few
decades back, those belonging to such community were outlawed and were
considered a threat to the morality of the society, although there was nothing
wrong or no damage caused to any of the members of the society. What started off
as a crime and a 'medically curable disease', eventually became more acceptable
until the day the community was finally recognise and accepted as a part of the
society as well as the legal system.
In India, the NALSA v. Union of India judgement finally gave the
transgenders a legal recognition. In the judgement in the case of Navtej Singh
Johar v. Union of India, consensual acts between homosexual adults in
private spaces was decriminalised. Eventually an enactment was also passed for
the protection of rights of Transgenders. All of this proves that the
morality in a society is very dynamic and keeps changing with times.
not have possibly imagined the same legal developments and recognition of moral
rights of the transgenders even a decade back. However, with the changes in the
society, the laws have also changed. A few years back, although transgenders
were just as much human beings as the rest of us with the same issues, were
given no legal rights as they were considered a threat to the morality. Today,
the very same people have been granted the legal status and safeguard for their
moral rights which has now gained the backing of law.
Legality and Morality is a very highly debated topic since eons. Multiple
jurists from different backgrounds and eras have highlighted some fantastic
facts and nuances of law to put across their point. Despite all of these
efforts, no conclusion has been reached yet due to the equally strong and
logical rebuttals from the opponent. It must also be noted that no amount of
debate can help us arrive at one stance due to the dynamism and
interdisciplinary nature of law.
However, if one has to take a personal stance, one would definitely prefer the
naturalistic approach over the positivist approach of rights and law in the
Prof. Holland distinguished legal right from "might" and "moral right". About
"might" he says: "if a man by his own force, or persuasion can carry out his
wishes, either by his own acts, or by influencing the acts of others, he has the
'might', so to carry out his wishes, either by his own acts, or by influencing
the acts of others, or by influencing the acts of others, he has the 'might' so
as to carry out his wishes".
About "moral rights" he says:
If the public
opinion would view with approval or at least with acquiescence, a person
carrying out his wishes, with disapproval any resistance made to his doing it,
then he has a 'moral right' so as to carry out his wishes.
About legal rights
if irrespective of his having or not having, either the might or moral
right on his side, the power of the state will protect him in so carrying out
his wishes, and will compel acts such acts or forbearance on the part of other
people, as may be necessary in order that his wishes may be so carried out, then
he has a legal right so to carry out his wishes. A man may have a legal
right to do some act which may be against morals. But it does not mean that the
legal rights are always opposed to morals.
While some believe that legal rights and moral rights coincide most of the time,
other jurists like Bentham outrightly stated that all rights are legal rights
and there exists no such thing as moral or natural rights. According to Tort
law, there exists no liability when there is no injury.
The maxim of Injuria
states that a person can be held legally liable if and only if his
act has caused a violation of the plaintiff's legal right. Therefore,
irrespective of the damage, if a person's legal right is infringed, he or she is
entitled to a remedy. Opposingly, one cannot be held liable for damnum sine
This maxim states that even though a person has suffered a considerable
damage from the other part, he or she cannot be entitled to any legal remedy if
there has been no violation of legal right. Therefore, damage without the
violation of legal right is not enforceable under the law. While this may seem
like a positivist approach, one must also notice that the Common law
successfully safeguards all moral rights of person through the force of law, by recognising them and giving them legal enforceability which in turn makes it a
Therefore, most rights in today's world is a combination of both positivist as
well as naturalistic approach- this means that one uses the authority of law
carved out by the positivist approach to safeguard the morality outlined by the
naturalistic approach. Therefore, although bearing a startling difference,
legality and morality of rights and law under Jurisprudence are intertwined into
an infinite loop of just laws and upright legal systems across the world.
To sum it up, for any legal system to work smoothly by having strong rights for
people of the nation, having both command of law as well as moral righteousness
is of paramount importance. It is hence important for both the schools of law to
come together as a single entity as the sole purposes of law is to prevent
anarchy and maintain social stability and retain social morality. Therefore,
there cannot be one particular school viable for the new age legal system, and a
mixture of both would be recommended.
- Nirupama V Shankar, 'Rights And Duties In Jurisprudence' (Legal Bites - Law
And Beyond, 2021) accessed 9 September 2021.
- Jim Powell, 'Natural Law And Peace: A Biography Of Hugo Grotius'
(Libertarianism.org, 2021) accessed 9 September 2021.
- 'Constitutional Rights Foundation' (Crf-usa.org, 2021) accessed 9 September
- Supra note 1
- Stevenson A, Shorter Oxford English Dictionary: On Historical
Principles: Deluxe Edition (Oxford University Press 2007)
- Maxim of Rex Non Potest Peccare
- Universal Declaration of Human Right, 1948
- United States Declaration of Independence, 1776
- Silving H, The Twilight Zone of Positive and Natural Law (1955) 43
California Law Review 477
- One Cannot Be Punished For Something That Is Not Wrong In The Eyes Of
- Hall L and Hall J, General Principles of Criminal Law (1947) 60 Harvard
Law Review 846.
- Supra note 11
- R.H. Helmholz, Natural Law In Court: A History Of Legal Theory In
Practice (2015) 82, 93
- Brian Tierney, Vitoria And Suarez On Ius Gentium
- John Hudson, Magna Carta, The Ius Commune, And English Common Law, In Magna
Carta And The England Of King John 99, 99
- Hermann Kantarowicz, Bractonian Problems: Being The Ninth Lecture On The
David Murray Foundation In The University Of Glasgow (1941) 22, 23
- Charles Henry Monro Trans., Cambridge Univ. Press
- Manlio Bellomo, The Common Legal Past Of Europe, 1000-1800, At 58 (Lydia G.
Cochrane Trans., 1995
- Daniel Baumann, Stephen Langton: Erzbischof Von Canterbury Im England Der
Magna Carta (1207-1228), (Andrew Colin Gow Ed., 2009) 159, 189
- Sir Frederick Pollock & Frederic William Maitland, History Of English
Law Before The Time Of Edward I, (The Lawbook Exch., Ltd. Photo. Reprint 1996)
- David Carpenter, Magna Carta: With A New Commentary (2015) 375-76
- Margaret Mcglynn, From Charterto Common Law: The Rights And Liberties Of
The Pre-Reformation Church, In Magna Carta, Religion And The Rule Of Law 53, 53
(Robin Griffith-Jones & Mark Hill Eds., 2015)
- F.S. Siebert, The Ecclesiastical Bar And Scholastic Philosophy, 32 VA. L.
REV. (1946) 753, 766.
- (Altman, 2001, Pp. 68-74)
- (Austin, 1954, P. 15)
- Andres Clapham, 'From Nuremberg To The Hague: The Future Of International
Criminal Justice', Philippe Sands, Cambridge University Press, 2003, P. 31
- State Of Rajasthan V. Union Of India [AIR (1977) SC 1361]
- Harshad Pathak, Beyond The Binary: Rethinking Gender Neutrality In Indian
Rape Law, Cambridge University
- Article 15(4), Constitution Of India, 1950
- Country Reports On Human Rights Practices � 2004
- (2014) 5 SCC 438
- (2018) 10 SCC 1
- Transgender Persons (Protection of Rights) Act, 2019
- Prof. Holland : Jurisprudence
Award Winning Article Is Written By: Ms.Charvi Devprakash
Authentication No: NV130542645502-01-1121
Please Drop Your Comments