LAW AND MORALITY
Updated: Dec 13, 2020
Adv. Niharika Sanjay Gumaste, Pune
Law and Morality
Morality represents a set of concepts and rules about good or bad, right or wrong, allowed or not allowed. The norms of morality are the creation of society or social groups. Also, moral norms indicate to the people, like the norms of law, the necessary conduct and show the consequences of non-observance of this behaviour, namely moral sanctions that are different from legal ones. Law is the system of norms established or recognized by the state to regulate the social relations according to the will of the state, whose observance is guaranteed by the coercive force of the state. However, between law and morality, there is a close connection of mutual conditioning. Thus, the law embodies within its moral principles, protects and guarantees fundamental moral values, and at the same time, its fundamental force is given by its moral obligation. For legal rules to be effective, they must comply with moral standards that are accepted by their recipients.
Law is the system of rules that a particular country or community recognizes as regulating the activities of its members and may enforce by the imposition of penalties. Morals are concerned with the principles of right and wrong behaviour and the goodness or badness of human character. Morality governs private, personal interactions. Law governs society as a whole. Law and morals differ because the law demands an absolute subjection to its rules and commands. Law has enforcing authority derived from the State. It is heteronymous (being imposed upon men, upon the outer life of men). Law regulates men’s relations with others and with society.
E.g.; A promissory note is in force for three years. The debtor must repay the loan. The creditor can enforce legal action against the debtor within three years from the date of execution of promissory note before the Court of law. The State provides organized machinery for the enforcement of the law. Law applies to all the citizens whether they want or not. Law cannot be changed into morals.
Morals demand that men should act from a sense of ethical duty. Morality has no such enforcing authority from the State. It is autonomous (coming from the inner life of men). It governs the inner life of men. If the promissory note is time-barred, then the legal duty of the debtor turns into moral duty. Of course, moral duty is not enforceable before the court of law. Morality applies to every human act. Morality also applies to all persons. But, it depends on person to person, society to society. It is his/her to follow or not.
Mircea Djuvara (1999) argued that “the foundation of law and morality is the same, the idea of obligation” and that “morality has as its objects the regulation of internal affairs”, and “the law has as its object the regulation of our external material facts in light of our intentions”. Although the law cannot interfere with the inner processes of the individual because it has as its object the regulation of the external manifestations of the individual, that is, the relations with the other people, the morality needs to penetrate the law, sanctioning it where necessary.
In Ancient Societies, there existed no distinction between law and morality. Both of them were considered to be the same. With the advent of the middle ages, the law was given a moral basis by religion.
According to Arndt’s, “Distinction between law and morality”;
1. Law is concerned with the individual liberty of a person whereas morality deals with the collective ideas of what is good and bad.
2. Law regulates the conduct of a man as long as he is a member of a specific community whereas morals guide the conduct of man even when he is all alone.
3. Laws consider the external acts of a man whereas morals look towards factors such as inner determination and direction of the will.
4. Law is enforced by way of “external coercion” whereas morals appeal to the free will of an individual.
Correlation between Law and Morality
1. Morals as the basis of law- In the early stages of society, there existed no clear distinction between law and morality. All rules regulating human conduct originated from a single source. All of them have been naturally made out of supernatural fear. When the State came into being, it picked up those rules which were important for the development of the society and converted them into law. Thus, both law and morals have a common source.
Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be a fatal consequence. The principles laid down in Queen v. Dudley and Stephen’s “Explorer’s case” is worth mentioning in this connection. In that case, 3 seamen and a boy, the crew of an English Yacht, were cast away in a storm on the high seas and were compelled to put into a boat belonging to the said yacht. They had no food and no water and to save themselves from certain death, they had killed the boy and fed on the boy’s body, when they were, later on, picked up by a passing vessel. They were tried for killing the boy and the jury returned a special verdict. The case came before a bench of five judges of Queen’s Bench Division Coleridge C.J. “the other four judges concurring”, observed;
“To preserve one’s life is generally speaking of a duty, but it may be the plainest and highest duty to sacrifice it. War is one, which is full of instances which show that it is a man’s duty not to live, but to die. The duty in case of ship wreck, of a captain to his crew, of the crew to the passengers, of soldiers to women and children. These duties impose on men the moral necessity, not of preservation, but the sacrifice of their lives for others. It is not needful to point out the lawful danger of admitting the principle which has been contended therefrom. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? It is to be the strength; or intellect, or what? It is plain that the principle leaves this to him, who is set to benefit by it, to determine the necessity, which will justify him in deliberately taking another’s life to save his own. In this case, the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown-up men? The answer must be “no”. So with necessity, the tyrant’s plea excused his devilish deeds”.
“It is not suggested that in this particular case the deals were devilish, but it is quite plain that such a principle, once admitted might be made the legal cloak for unbridled passion and atrocious crime. There is no safe path for judges to tread but to ascertain the law to the best of their ability and to declare it according to their judgment and if in any case, the law appears to be too severe on individuals, to leave it to the sovereign to exercise that prerogative of mercy which the constitution has entrusted to the hands fitted to dispense it.
“It must not be supposed that in refusing to admit the temptation to be an excuse for crime, it is forgotten how terrible the temptation was; how lawful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot search ourselves, and to lay down rides which we could not ourselves satisfy. But a man has no right to declare the temptation to be an excuse, though we might have on our own yielded to it, or allow compassion for the criminal to change or weaken in any manner the legal definition of crime”.
GROVE, J. while concurring added; “if the two accused men were justified in killing, then if not rescued in time, two of the three survivors would be justified in killing the third and, of the two who remained, the stronger would be justified in killing the weaker so that three men might be justifiably killed to give the fourth a chance of surviving”. Thus, the principle is that no man has a right to take another’s life to save his own.
However, it does not mean that morals are the basis of all the legal rules. There are several legal rules which are not based upon morals and some of them are even opposed to morals. Morals will not hold a man vicariously liable- one liable for the actions of another- where the person made liable is in no way blamable. In the same way, in cases where both the parties are blameless and they have suffered by the fraud of a third, the law may impose the loss upon the party who is capable of bearing it but, such a course will not be approved by morals.
2. Morals as a test of law- Several jurists believe that law must conform to morals. When natural law theories were popular, it was opined that the positive law must conform to natural law. Natural law was viewed as the highest form of law. In modern times, such a view is not prevalent. Today, the law is not tested based on morality. However, a close study indicates that a majority of laws nevertheless conform to morals. This is so because morality is an important part of any society and law is deeply interrelated with society.
In the words of Paton, “If the law lags behind the popular standard, it falls into disrepute; if the legal standards are too high, there are great difficulties of enforcement”.
3. Morals as the end of the law- Many jurists hold the opinion that the morals are indirectly the end of the law. The purpose of the law is to ensure effective administration of justice and the idea of justice is often defined based on morality. Morals are an evaluation of interests; the law is or at least seeks to be delimitation in accordance therewith. Therefore, morals are the end of the law.
According to DUGUIT, “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”.
According to POUND, “law and morals have a common origin but they diverge in their development”.
Thus, the principles of law originated in morality, this being the cornerstone of the law. The core of the distinction between legal and the moral norms, according to Del Vecchio (1993), is that “the law constitutes objective ethics and the moral subjective ethics”. The lawyer who dominated the Romanian legal scene in the interwar period, Micescu (2000), states that “law is a kind of morality, but a morality imposed with the guarantee of securing the respect it owes. In other words, the law is the morality of those who do not have morals and that unlike other sciences who are content to find what it is and to express what it finds, the law has an extra claim; after having found, after it has noticed, after detaching the relations as they are, to judge them under the angle of view of moral values and, instead of looking with resignation to what it is, to impose with authority what must be”.
About Niharika Sanjay Gumaste
Niharika Sanjay Gumaste is a certified advocate who worked as a Legal Associate in Pune. Her practice and work mainly focuses on criminal matters and corporate non-litigations. She is totally open to new opportunities and content writings. She will be more than happy if you contact her on the email-id (firstname.lastname@example.org) regarding any query about the blog.