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Concept of Law and Morality

The document discusses the relationship between law and morality. It notes that historically law and morality were closely linked, with morality providing the basis for laws. However, in modern times a distinction has emerged, with law focusing more on societal order and relationships between individuals and the state, while morality concerns individual character. While law and morality often overlap and pursue the same ends, they differ in their scope of application and enforcement. The document also discusses a court case where the rights of an HIV-positive individual seeking marriage were weighed against the rights of their partner to make an informed decision, and the court prioritized morality and health over confidentiality in this situation.

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117 views12 pages

Concept of Law and Morality

The document discusses the relationship between law and morality. It notes that historically law and morality were closely linked, with morality providing the basis for laws. However, in modern times a distinction has emerged, with law focusing more on societal order and relationships between individuals and the state, while morality concerns individual character. While law and morality often overlap and pursue the same ends, they differ in their scope of application and enforcement. The document also discusses a court case where the rights of an HIV-positive individual seeking marriage were weighed against the rights of their partner to make an informed decision, and the court prioritized morality and health over confidentiality in this situation.

Uploaded by

harshita
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PPTX, PDF, TXT or read online on Scribd
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CONCEPT OF LAW AND

MORALITY
INTRODUCTION
• Ever since the revival of the scientific study of jurisprudence the
connection of law and morality has 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 purpose of the jurist, law is
absolutely independent of morality, almost to the opposite positions,
held by others, that morality and law are one
MORALITY OR MORALS
• It is concerned with the principles of right and wrong
behavior
• These are those principles which are virtuous, good,
righteous, upright, upstanding,
• In general view morality is the quality of being in accord with
standards of right or wrong conduct. Morality, speaks of a
system of behavior in regards to standards of right or wrong.
• The word carries the concepts of: (1) moral standards, with
regard to behavior; (2) moral responsibility, referring to our
conscience; and (3) a moral identity, or one who is capable of
understanding right or wrong action
LAW
• A rule, usually made by a government, that is used to order
the way in which a society behaves.
• It is a binding custom or practice of a community or a rule of
conduct or action prescribed or formally recognized as
binding or enforced by a controlling authority.
• Law is something which is obligatory in nature and is
imposed on the members of society.
RELATIONSHIP BETWEEN LAW AND
MORALITY
• Both, law and morality, have a common origin. In fact, morals gave rise to laws.
The State put its own sanction behind moral rules and enforced them. These
rules were given the name law.
• Both, law and morality have a common object or end in so far as both of them
direct the actions of men in such a way as to produce maximum social and
individual good. Both, law and morality are backed by social or external sanction.
• Bentham said that legislation has the same center with morals, but it has not the
same circumference. Morality is generally the basis of law, i.e. illegal (murder,
theft, etc.) is also immoral. But there are many immoral acts such as sexual
relationship between two unmarried adults, hard-heartedness, ingratitude, etc.
which are immoral but are not illegal. Similarly, there may be laws which are not
based upon morals and some of them may be even opposed to morals,
• Morals as test of law: several jurists have observed that law must
conform to morals, and the law which does not conform to morals
must be disobeyed and the government which makes such law should
be overthrown.
• Paton said that if the law lags behind popular standard, it falls into
dispute, if the legal standards are too high; there are great difficulties
of enforcement.
No distinction in ancient times:

• In the early stages of the society there was any 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
A distinction drawn in post-Reformation Europe

• However, in the 17th and 18th centuries natural law theories became
very popular and, more or less, they had a moral foundation. Law
again came to be linked with morals.
• 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.
• 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 a change in
trend of thought in modern times.
Distinction Between Law and Morals

It has been repeatedly observed in the preceding paragraphs that in


modern times there is a clear distinction between law and morals in every
developed and civilized society.
• The morals are concerned with the individual and lay down rule for the
moulding of his character. Law concentrates mainly on the society and
lays down rules concerning the relationships of individuals with each
other and with the state.
• The morals are an end in themselves. They should be followed because
they are good in themselves. Law is for the purpose of convenience and
expediency, and its chief aim is to help a smooth running of the society.
• The observance of morals is a matter of individual conscience. Law brings
into picture the complete machinery of the state where the individual
submits himself to the will of the organised society and is bound to follow
its rules.
Continue…
• Law and morals, again, differ in their application. The morals are
applied taking into consideration the individual cases whereas the
application of law is uniform.
• Roscoe Pound therefore, says that: as to application of moral
principles and legal precepts respectively, it is said that moral
principles are of individual and relative application; they must be
applied with reference to circumstances and individuals, whereas
legal rules are of general and absolute application.
SITUATION
Common wealth v. Holmes
In case of conflict of fundamental rights of two individuals the decision
is to be made on the basis of morals.

HIV+ PERSON – INFORMATION DISCLOSED TO - TO BE WIFE


CONFLICT BTWN FRs
• The court held:
As a human being A must also enjoy, as she obviously is entitled to, all
the human rights available to any other human being. This is apart from,
and in addition to, the fundamental right available to her under Article
21. This right would positively include the right to be told that a person,
with whom she was proposed to be married, was the victim of a deadly
disease, which was sexually communicable.

Since right to life includes right to lead a healthy life so as to enjoy all
the faculties of the human body in their prime condition, the
respondents, by their disclosure that the appellant was HIV(+), cannot
be said to have, in any way, either violated the rule of confidentiality or
the right of privacy.

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