ASSIGNMENT

ON

RELATIONSHIP BETWEEN LAW AND MORALITY:

SUBJECT- JURISPRUDENCE

SUBMITTED TO:

Professor S.K. Gupta

Professor, Jurisprudence

SUBMITTED BY:

Rachna yadav

Roll -17

B.A. LLB. (Hons.) VII Sem

1
 ACKNOWLEDGEMENT

At the outset, I thank the Almighty who gave me the strength to accomplish this project with
sheer hard work and honesty. I take this opportunity to observe protocol to show my deep
gratitude to our revered Jurisprudence course teacher, Prof. S.K. Gupta for his kind gesture in
allotting me such topic as research project. His timely advice, direction and valuable assistance
tremendously boosted me during the making of this project.

Secondly, all this wouldn’t have been possible without my parents and friends who gave their
valuable time for guidance, boosted my confidence and helped me a lot in completing this
project without any drawbacks. Hence. I am forever indebted and grateful to them.

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 TABLE OF CONTENTS

INTRODUCTION.................................................................................................................... 4

CONCEPT OF LAW AND MORALITY .............................................................................. 5

LAW AND MORAILTY DEBATE: PERSPECTIVE OF GREAT JURISTS .................. 6

NEXUS OF LAW AND MORALITY .................................................................................. 10

DISTINCTION BETWEEN LAW AND MORALITY ...................................................... 13

CURRENT JUDICIAL TREND WITH CONTEMPORARY ISSUES ........................... 14

CONCLUSION ...................................................................................................................... 17

BIBLIOGRAPHY .................................................................................................................. 18

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 INTRODUCTION

Ever since the revival of the scientific study of jurisprudence the connection of law and
morality has been much discussed, but the question is not yet, and perhaps never will be, settled.
Every variety of opinion has been entertained, from the extreme doctrine held by Austin that,
for the purposes of the jurist, law is absolutely independent of morality, almost to the opposite
position, held by every Oriental cadi, that morality and law are one. The question is an
important one, and upon the answer which is given to it depends much more than merely
theoretical consequence.

The following assignment will try to analyse this relationship between law and morality, how
they are similar and where the differences lies. Also, it will put an insight of the great Jurist of
this subject and in the last it will discuss the modern trends with the help of suitable cases.

4
 CONCEPT OF LAW AND MORALITY

1. ANCIENT TIMES

In the early stages of the society there was no distinction between law and morals. In Hindu
law, the prime sources of which are the Vedas and the Smritis, we do not find such distinction
in the beginning. However, later on, Mimansa laid down certain principles to distinguish
obligatory from recommendatory injunctions. In the west also, the position was similar. The
Greeks in the name of the doctrine of "natural rights" formulated a theoretical moral foundation
of law. The Roman jurists in the name of "natural law" recognized certain moral principles as
the basis of law. In the middle ages the church became dominant in Europe. The "natural law"
was given a theological basis and Christian morals were considered as the basis of law.

2. POST-REFORMATION EUROPE; MODERN TRENDS

In the post-reformation Europe "when the yoke of the church was thrown off' it was asserted
that law and morals are distinct and separate, and law derives its authority from the state and
not from the morals. Morals have their source in the religion or conscience. However, in the
17th and 18lh centuries "natural law" theories became very popular and more or less, they had
a moral foundation. Law again came to be linked with morals. Again, there came a reaction. In
the 19th century Austin propounded his theory that the law has nothing to do with the morals.
He defined law as the command of the sovereign. He further said that it was law "command"
alone which is subject-matter of jurisprudence. Morals are not a subject-matter of study for
jurisprudence. Many later jurists supported the view of Austin. In the 20th century Kelsen said
that only the legal norms are the subject-matter of jurisprudence. He excluded all other
extraneous things including the morals from the study of law. There is change in the trend of
thought in modern times. The sociological approach to law indirectly studies morals also.
Though they always make a distinction between law and morals and consider the former a
proper subject-matter of study, in tracing the origin, development, function and ends of law
they make a study of the forces which influence it. Thus, their field of study extends to the
various social sciences including morals.

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 LAW AND MORAILTY DEBATE: PERSPECTIVE OF GREAT JURISTS

HUGO GROTIUS (1583-1645)

HUGO GROTIUS was Dutch national and a republican philosopher. In the famous works "The
Law of War and Peace". GROTIUS has stated that natural law springs from the social nature
of man and the natural law as well as positive morality, both are based on the notion of
righteousness. Natural justice is the justice in deed and truth. The rules of human conduct
emerge from right reason and, therefore, they receive public support of the community. The
real sanction behind these rules is not the coercive force of the state but the censure of public
disapprobation.

IMMANUEL KANT (0724-18041)

KANT developed the metaphysical method still further and held that ethics and law are not one
and the same thing. According to him, ethics relates to man's spontaneous acts while law deals
with all those acts to which a man can be compelled. Ethics thus deals with the inner life of the
individual, law on the other hand, regulates his external conducts. KANT emphatically pointed
out that an organized society should not exercise compulsion to make man virtuous, but
compulsion should be exercised only to regulate his external conduct. In his view, "Law is the
sum total of the conditions under which the personal wishes of man can be reconciled with the
personal wishes of another man in accordance with a general law of freedom"

Kant’s Doctrine of Categorical Imperative / Kant’s Concept of The Moral Law :

In KANT’s opinion, moral law is a categorical imperative. There is no law or authority over it.
A duty is always a duty, and duty is obligatory. It should be done anyway. Moral laws are
universal. The originate only in the real essence of the doer. Their basis is the very moral nature
of man. Other objects are good in a limited way because their importance is only in special
circumstances but good will is good regardless of the circumstance in view of its propriety
being independent of the result. Good will is the ultimate good and good will is rational will.

HEGEL (1770-1831)
According to HEGEL, “Law is a right in the sense of freedom” where freedom comes from the
existence of will. Also, free will has three main components and basic levels of development,

6
namely, Abstract law, Moral ethics and Morality. He also argues that Kantian morality in
separating the concept of the right from the morality of our inclinations, expresses simply an
"ought”. Something that 'ought to be' the case but cannot simply 'is'. He emphasises that
Kantian morality is abstract and formal, and it has not provided content to moral obligations.
Hegel is very much inspired by Kant's conception of morality. Hegel shares with Kant that the
moral law is apprehended by reason. The moral law is binding upon all human beings without
considering the personal interests of the agents. W.H. Walsh observes that, "Both lay emphasis
on the objective character of the moral law, which they take to be binding on agents without
regard to their personal wishes; both argue that the content of the law is determined by rational
principles and can accordingly be apprehended by reason." But Hegel also fundamentally
differs from Kant on the issues of ethical formalism and the duty for the sake of duty. Hegel
levels two important charges on KANT. First, Hegel argues that Kant's categorical imperative
is formal and empty of content. Secondly, Kantian ethics offers no solution to the opposition
between morality and self-interest. I shall try to explain and examine these two main charges
against Kantian ethics below. Kant holds that morality rests on pure practical reason, free from
any particular motives or intention. The moral worth of an action lies in obeying the moral law
for its own sake. Kant calls it 'duty for the sake of duty'. An action is morally good if it is
performed out of the motive of duty. He holds that we must have respect or reverence towards
the moral law . Kant states, "Duty is the necessity to act out of reverence for the Zaw.',J4 The
moral law is universally applicable to all human beings. It is ought to be obeyed for its own
sake. As a result, Hegel thinks that Kantian moral law can yield only the bare, universal form.
free from content.

STAMMLER (1856-1938)
STAMMLER was a Neo-Kantian. He defined law as, "species of will, other-regarding, self-
authoritative and inviolable”. For him, a just law was the highest expression of man’s social
life and aims at preservation of freedom of individuals. According to him, the two fundamental
principles necessary for a just law were: 1) Principles of respect, and 2) The principle of
immunity participation. With a view to distinguishing the new revived natural law from the
older one, he called the former as “natural law with variable content According to him, law of
nature means "Fust law” which harmonizes the purposes in the society. The purpose of law is
not to protect the will of one but to unify the purposes of all.

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JOHN AUSTIN (1790-1859)

AUSTIN is popularly credited for founding analytical positivism in legal theory and for this he
is styled as “Father of English Jurisprudence”. Some knowledge of his biographical
background is, therefore, necessary in order to understand his attitude and philosophy
concerning law.

Austin - Separation of Law and Morals Rationale

The major postulate of Austinian positivism is based on one rigid separation between law and
moral words. "AUSTIN drew sharp distinction between science of jurisprudence and science
of legislation or ethics. The former is concerned with positive laws irrespective of their
goodness or badness. It studies law as it is or as it exists which the people are obliged to obey.
AMOS says that "AUSTIN by establishing distinction between positive law and morals not only
laid the foundation for science of taw, but cleared the conception of law...positive laws, as
AUSTIN has shown, must be legally binding, yet a law may be unjust".

The rationale of AUSTIN to separate law and morals was necessitated due to exigencies of
time. The Austinian times were more or less comparatively stable and peaceful appropriately
served the needs of times in order to preserve peace and "status quo" in society. AUSTIN’S
army background and study of Roman law in Germany further confirmed his desire of an
obligatory, clear and definite law independent of moral and ethical values. According to
AUSTIN, the notion of command is "the key to the science of jurisprudence and morals”, In
this way AUSTIN divorced moral and abstract assumptions and immunized his positive law
from extra-legal considerations have no reference to public good, public morals and public
policy. In short, his positivistic law responded to the needs of individualistic and capitalist
society perfecting coercive powers of the state by isolating from actual social relations.

PROFESSOR HERBERT LIONEL ADOLPHUS HART (1907)

Morality is implicit in HART’s system of law which he describes as union of primary and
secondary rules. These rules being normative in character set a standard of behaviour that
obligates subjects for acceptance and observance of such rules beyond the threat that may
enforce it. Being as members of the society or groups they feel to abide by the rule both as
matter of duty and obligation. There are several conjunctions in HART’s system of law where
law and morality co-exist, overlapping and are even complimentary and supplementary in

8
nature. The customary nature of primary rules, the nature of secondary rules of change
introduced to supplement the primary rules to bring about change in the primary rules to meet
requirements of society and limited discretion to judges where rules of recognition provide no
guidance to judges to decide are some of the areas where HART concedes decisive influence
of morality on law. Moreover, his rejection of law as a gun-man situation further implies the
inseparable character of relationship between law and morality. Indeed, in his positivism there
is perceptible impact of natural law which signify HART’s infusion of higher law.

In fact, HART’s positivism has scope for natural law as well as morality which has made him
both a positivist as well as naturalist. According to HART the minimum content of natural law
is shared by both law and morals. He further attempts to distinguish morality from law, custom,
etiquette, and other kinds of social rules. It is four features of morality which, HART says, are
necessary for a clear picture of his concept of law. These four features, he describes1, under
the heads of “Importance, Immunity from deliberate change, Voluntary character of moral
offences, and Forms of moral pressure.

9
 NEXUS OF LAW AND MORALITY

In considering the relationship between law and morals much will depend on how one defines
law. Analytical, Historical, Philosophical and Sociological jurists have all defined law in their
own way and these definitions materially differ from each other. A definition which regards
law as the “command of the sovereign’ would not make any concession for morals to have
place in law. But a definition which regards all the rules and principles which govern and
influence human conduct as law allows morals to play a very important rule in the field of law.

A study of the relationship between law and morals can be made from two angles.

a) Morality as basis of law (former Concept)

b) Morality as basis of law where law acknowledges the morality for making it (Present
Concept).

Morality generally means ‘rules governing human behaviour’ or sometimes one’s personal
views about a thing or activity which should not be imposed upon others as these are not
enforceable. As already said, earlier law was purely based on morals. When state came into
being, the society opted for those values and rules which were important from its point and put
its own sanction behind it. These norms were known as law. The rules meant for good of the
individual and which were not observed continuously by the state in its real term called morals.
However, law and morality have same inception but by the time, they diverged in the course
of its development. Many rules are mutual for both law and morality like murder, theft, dacoity
and robbery are some of the acts, against law as well as morality. In Queen v. Dudley &
Stephens1, three seamen and a boy were cast away in the storm on the high seas in an open
boat. They had no food and drinking water in the boat. In order to save themselves from certain
deaths as many days had passed without food, they killed the boy and jury returned a special
verdict. CJ Colerige observed: “Was it more necessary to kill him than one of the grown-up
men? The answer must be No….” The bench of five judges held, “no man has a right to take
another’s life to save his own.

However, it cannot be said that morals are the basis of legal rules. It can be said that usually
law has some base of morals but in contemporary world, law and morality can be described

1
14 QBD 273

10
separately. There are many things, which may be immoral but not necessarily illegal like
cheating on your friend or spouse, breaking promises (for certain sets of people) and which
may be illegal but not necessarily immoral like drinking under age, abortion (for certain sets
of people). Some scholars argue that “morality cannot be legislated” and I agree with those
scholars because it is individual’s will or conscience. For example, in Indian Society, morals
say that inter caste marriages or love marriages should not take place but when two individuals,
with their will and consent want to marry, it is an independent state, and everyone has right to
choose his life partner according to his/her will. Where the issue of intervention by the law in
such Indian democratic system arises? Indeed, that person has to take a look at his family, but
law has nothing to do with such situation. Take another issue of living relationship, which has
a moral ban on it. My view is that when two major individuals with their free consent decide
to live together, where the question of infringement of moral standards arises. There is no
infringement of moral standards and no intervention by law. There are also other issues like
homosexuality, prostitution which are conflicting in order to decide morality and law,
therefore, morality cannot be legislated and as it depends upon the wishes of the individual
except under certain circumstances. Morality has power to control the behavior of an individual
therefore, it is important that it must not be excluded in the society. Even International
Humanitarian Laws, laid certain moral standards as ingredient of law. Whenever, morality
raises affirmative impact on society, a complete separation of law and morality is not possible
in order to maintain balance. The aim of the law is to provide justice to people and justice in
its popular meaning based upon the morals. In Stephen’s case2, it was held that the principle
evolved that no man has a right to take another’s life to save his own life. In India, Supreme
Court has also laid that in case of conflict of fundamental rights of two individuals, the decision
is to be made on the basis of morals. In the case, the appellant’s blood sample was detected
HIV (+). When due to disclosure, it was acknowledged by the ‘A’, fiancée of appellant and the
proposed marriage of the appellant was called off. The appellant sued the hospital authorities
for damages on account of violation of appellant’s right to privacy as well as doctor’s duty to
maintain confidentiality. The Apex Court held that “where there is a clash between two
fundamental rights, as in the instant case, namely the appellant’s right to privacy as a part of
right to life and A’s right to lead a healthy life which is her fundamental right under Article
21, the right which would advance the public morality or public interest, would alone be
enforced through the process of the court, for the reason that moral consideration cannot be

2
supra

11
kept at bay and the judges are not expected to sit as mute structures of clay in the hall known
as the courtroom, but have to be sensitive, in the sense that they must keep their fingers firmly
upon the pulse of the accepted morality of the day”3Law cannot make people completely
perfect. It is just for having minimum standards and setting up of standards at very high level
can render the laws very ineffective. The purpose of law is not to render laws of the land
ineffective but to maintain law and order in the country. If someone violates these minimum
standards, then punishment is remedy. In this way, morality has got recognition, but it does not
convey that all the legal rules are based on morals. There are legal rules which are not based
on morality. Some of the examples are vicarious liability, principle of Absolute liability where
one man is punished for the act of another and one has to pay the incurred obligations in a case,
when he has not done any act, arising any obligation, respectively.

3
Mr. X v. Hospital Z (1998) 8 SCC 296

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 DISTINCTION BETWEEN LAW AND MORALITY

In modern times, there is a distinction between law and morality. Roscoe Pound 4states that
“as to application of moral and legal precepts respectively, it is said that moral principles are
of individual and relative application; they must be applied in reference to circumstances and
individuals, whereas legal rules are of general and absolute application”. The morality depends
upon the conscience or will of the individual. An act moral for me may be immoral for you and
morals mould the character of an individual. The best example can be taken of marriage in
Hindus and Muslims. In Hindus, only one marriage is considered as sacred and bigamy is a sin
and in Muslims, they are allowed to marry four women at one point of time. Law is concerned
with the society collectively and not with the wishes of the individual. Law looks for act of the
individual, meaning thereby, it has nothing to do with the motive of the person, committed the
wrong whereas morality sees for the motive or intention of the person, what his conscience
says. There is a famous maxim, “Ignorantia juris non execusat” meaning thereby, ignorance of
law is no excuse. It is presumed that one should know the law of the land, if a person does not
follow the law; state is empowered to punish that person whereas morality is not coercive in
nature. State has no power to punish for violation of such morality. In case of application of
law, it has universal character with no ambiguity or vagueness whereas in case of application
of morality, it differs from case to case as it is vague and uncertain. It is a matter of choice of
a person. Despite of the differences stated above, there is affinity between the two. Law ensures
conformity to the code of behavioural law and it is essential as it cannot completely ignore the
ethical and moral aspects. If there are laws, not up to the standards of ethical behaviour, such
laws cannot survive in contemporary India. In a sensitive country in terms of ethics like India,
riots take place even on very small causes. In order to survive, a law must meet the expected
criteria or social consciousness.

4
Law and Morals

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 CURRENT JUDICIAL TREND WITH CONTEMPORARY ISSUES

Presently, scenario is such that law and morality have different meaning and application. These
values are dynamic. In this changing society, social values are changing rapidly. The recent
Judgment of the court in decriminalising Section 377 of IPC, 1860 can be taken as example5.
In this case what is taken into consideration is Constitutional Morality and not social morality.
Each person’s fundamental rights are given priority to the over dilemma related to Morality.
As Sec 77 penalises unnatural sex, which for many is immoral, this progressive judgment by
the court is a direct shift from the moral notions prevailing in the society. Another case, which
actually led to the above judgment is National Legal Services Authority v. Union of
India and others6. In this case, the Court held that “Notions of social morality are inherently
subjective, and the criminal law cannot be used as a means to unduly interfere with the domain
of personal autonomy. Morality and criminality are not coextensive.”

Another example in this regard is decriminalisation of Adultery7. In this case, there is a debate
regarding the question that whether Adultery should be penalised as it is a moral wrong and
affects society at large or whether civil remedy will serve the purpose. The court observed that
“criminal sanction may be justified where there is a public element in the wrong, such as
offences against State security, and the like. Also, the element of public censure, visiting the
delinquent with penal consequences, and overriding individual rights, would be justified only
when the society is directly impacted by such conduct. In fact, a much stronger justification is
required where an offence is punishable with imprisonment.

Another criminal issue is Obscenity, defined by the Indian Penal Code, 1860, where the Apex
court through no. of its judgements sets the principles that Obscenity means “the quality of
being obscene which means offensive to modesty or decency; lewd, filthy and repulsive” 8 and
it may vary from country to country depending on the standards of morals of contemporary
society.” This verdict of the Supreme Court states that it also depends upon the morals, which
differs from person to person or society to society. 9The court has accepted the view, that morals

5
Navtej Singh Johar vs Union Of India Ministry Of Law And ... on 6 September, 2018
6
(2014) 5 SCC 438
7
Joseph Shine v. Union of India, judgment dated 28.09.2018
8
Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881 at p.885.
9
Chandrakant Kalyandas Kakodkar v. State of Maharashtra (1969) 2 SCC 687 at p. 693

14
and law are two different things in contemporary society. In K.A. Abbas v. Union of India10,
the Court held that “sex and obscenity are not always synonymous, and it was wrong to classify
sex as essentially obscene or even indecent or immoral” Further, in Bobby Art International
case11, regarding the depiction of the rape scene in the film Bandit Queen, the Court held that
“the object was not to arouse prurient feelings but revulsion for the perpetrators. In
determining, whether an act is obscene, regard should be given to recent times or modern
scenario of that place”.

Euthanasia is also a debatable issue which can be contextualized in terms of morality and Law.
There was earnest and profound debate about the morality, legality and practicality of physician
assisted suicide. After a lot of struggle and constant pleading by the related NGOs Supreme
Court in the case of Aruna Shanbaug v. Union of India and others12 allowed Passive
euthanasia in certain conditions. However, it was denied to Aruna Shaunbaug in this particular
case.

Needs are changing rapidly so as morals. Therefore, law and morality are separable and due to
the rapid growth of the society, morals cannot stand static. In Ram Chandra Bhagat v. State
of Jharkhand13, there was difference of opinion between the judges. According to Justice
Katju, “Often an act may be regarded as immoral by society, but it may not be illegal. To be
illegal the act must clearly attract some specific provision of the Penal Code, or some other
statute. In the present case, it can be said that the appellant has not behaved like a decent man
but, in my opinion, Section 493 of IPC is not attracted” and thus law is different from morality.
Whereas Justice Mrs. Mishra said “While there is no difficulty in accepting the position that
law and morality might stand on a different footing although they are inextricably linked in my
perception, yet I agree that legal decision cannot be based purely on morality” and it can be
said that moral aspects of a particular actions are relevant to determine the act of the accused.

In D. Velusamy V. D. Patchaiammal14, after examining the evidences, Apex Court came to

10
(1970) 2 SCC 780
11
(1996) 4 SCC 1
12
Decided on 7 March 2011
13
Decided on 24 November 2010
14
2009 (160) DLT 27

15
recognized by Parliament by enacting The Protection of Women from Domestic Violence Act,
2005”. Living relationship is a new phenomenon, which was not recognized by the law before
the Act of 2005 and judgement of this case but now considering the dynamic social values and
morals, court awarded the maintenance to the lady without encountering it as immoral by the
society.

If one looks at Preamble of Indian Constitution, in the end, it endeavours to accomplish the
morals and it indicates that moral of the contemporary age. Considering all these cases, it can
be said that social values of the people have changed due to globalization and rapid growth of
the country.

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 CONCLUSION

On a concluding note, it can be said that Morality and Law are not one and the same thing.
Morality is one of the sources of law or the basis of law but not law in itself. Also, there is no
straitjacket formula to define Morality, What maybe moral for one maybe immoral for another.
Changed life style, freedom, liberty has its place in law and in such situation dependence of
law on morality is not possible. With modernisation, the idealistic values of ethics, morality
have drastically changed and so to meet the current situation of the society, reliance on earlier
notions of morality is not a good thing. The novel India must reflect in the law of the land or
statutes and it is taking place as can be seen from permitting of homosexuality, permitting
euthanasia etc.

Further, law and morality can be same when morality and public notion is same, and law and
morality cannot be same when morality and public notion is in engagement. Therefore,
Morality and public opinion cannot be same if seen in terms of each and every individual.

At the end, it is best to understand Morality as an end in itself and Law as a means to achieve
an end. Thus, law can be used for several purposes for smooth functioning of the society where
morality will be one of the factors but not the only factor which law governs.

17
 BIBLIOGRAPHY

• Singh, Dr. Avtar & Kaur, Dr. Harpreet, (2009), Introduction to Jurisprudence, Nagpur, Lexis
Nexis Butterworths Wadhwa.

• Mahajan, V.D, Jurisprudence & Legal Theory, Lucknow, Eastern Book Company.

• Hart, H.L.A, The Concept of Law, Oxford University Press.

• Tripathi, Dr. B.N. Mani & Mani Rajeev, An Introduction to Jurisprudence (Legal Theory),
Faridabad, Allahabad Law Agency.

• W. Bradley Wendel, “Legal Ethics and the Separation of Law and Morals”, Cornell Law
School research paper series.

• Bradley Kar Professor Robin, “The Deep Structure of Law and Morality”, March 2006,
Loyola Law School legal studies paper.

• Dube, Dr. Dipa, “Some Reflections on Interplay of Law and Morality in Contemporary India”,
Indian Institute of Technology, Kharagpur.

• Gardner John (May 2010), “Hart on Legality, Justice, and Morality”, University of Oxford
Legal Research Paper Series.

• http://legalserviceindia.com/articles/lmor.htm, October 2011

• http://www.cygneis.com/ethics/gamoralist.htm, October 2011

• http://www.sociologyguide.com/morality/law-and-morality.php, October 2011

• http://www.convertjournal.com/2011/09/morality-vs-law/, October 2011

• http://www.qcc.cuny.edu/socialsciences/ppecorino/intro_text/Chapter%208%20Ethics

/Mores_Law_Morality.htm, October 2011

• http://www.mncuf.org/law.htm, October 2011

• http://www.radicalnewthoughts.com/morality-and-the-law.html, October 2011

• http://www.garlikov.com/philosophy/LOM.html, October 2011

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