“ARE THERE ANY NECESSARY CONNECTIONS BETWEEEN LAW

AND MORALS? ANALYSE AND SUPPORT YOUR ANSWER WITH

EXAMPLES”

PROLOGUE
Ever since the revival of the scientific study of jurisprudence the connection of law and
morality has much discussed, but the question has a vast range of opinions. Every variety of
opinion has been entertained, from the extreme doctrine held by Austin that for the purpose
of the jurist, the law is absolutely independent of morality, almost to the opposite positions,
held by different jurists, that morality and law are one.
In numerous circumstances, law and morality is considered to be inter-linked but is not the
same. The understanding of both the terms is significant to acknowledge the use of these
terms. In old times, there was no considerate difference between law and morals as in ancient
world the law was somewhat related and originated from morals and customs practiced at that
time.

ANCIENT TIMES
In the earlier stages of the society there was no distinction between law and morals. In Hindu
law, the prime source 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 right’ formulated a theoretical moral
foundation of law. The roman jurist in the name of ‘natural law’ recognized certain moral
principles as the basis of law. In the Middle Ages, the Church become dominant in Europe.
The ‘natural law’ was given a theological basis and Christian morals were considered as the
basis of law.

WHAT IS MORALITY?
Morality speaks of a system of behavior in regards to standards of right or wrong behavior.
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 right or wrong action
There are different ways of explaining morality, an example is
'a code of beliefs, values, principles, and standards of behavior, some version of which is
found in all groups'.
According to the sociologist Durkheim, it is impossible to identify a single set of moral
values that would be acceptable to all members of modern society. Morality is a person's
conscious sense of right and wrong, which can be derived from a number of different sources,
such as parents, friends, peers, media
There is a number of factors that influence one’s moral development, hence morals differ
from person to person.
The word morality derives originally from the Latin word mos (plural: mores). The standard
meaning of this word is a custom, habit or usage that is determined by man’s will rather than
by law. The Roman statesman and Orator Cicero once wrote that law and custom (mos) must
both be obeyed, illustrating their parity. Custom formed the bedrock of Roman society in
Cicero’s day, with duties and obligations balanced by rights and privilege
Example:
Some people believe that honor killing is legitimate some abhor it. Moral behavior is what
makes a difference here.

WHAT IS LAW?
"Law", according to the Encyclopedia Britannica, "refers to the specialized form of social
control familiar in modern, secular, politically organized societies". The Thomistic and
Christian view understands law otherwise:
"it is nothing else than an ordinance of reason for the common good, made by him who
has care of the community, and promulgated" .

The purpose of human law is the common good more than the good of individuals It is to
establish a certain order, so as to protect the social living.
Without law, there is no society, only the jungle, the rule of might
"If there is justice, and if law is based on discernment of what is just, dialogue can begin
and benevolence can appear; so we come to what is ours in common. The first form of
culture is law. Its effectiveness means that barbarism has been overcome: men have
always been civilized this way"

Example: ​Traffic signal rules are strict and free of any moral obligations.

RELATIONSHIP BETWEEN LAW AND MORALS

The influence of morality in a very general sense is also implicit in a wide range of different
laws. For instance, in the commercial world, laws criminalizing bribery and the imposition of
legal duties on company directors embody what would commonly be considered the ‘right’ or
moral way to conduct business. However, the law is influenced by a wide range of political,
social, economic and cultural factors, and the moral climate of society is only one of these
factors. In practice, many laws have a bureaucratic, administrative and technical function.
They operate as an essential part of a complex modern society and have little or no
connection with morality.

Moral values are not static, they evolve over time and laws may change as a consequence.
For example​, rape within marriage was criminalized in Scotland in 1989, reflecting the
change in social and moral attitudes to the role and status of women.
The abolishment of section 377 in India, has been a historical verdict in favour of
homosexuality. The law to some is immoral while to others it’s screaming peace and equality.

THEORIES REGARDING LAW AND MORALITY

“Jurisprudence depends on moral ideas whereas, “just law” needs ethical

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doctrine”(S
There are two distinct theories regarding law, positivism and natural law.

LEGAL POSITIVISM
Positivists believe that a law is a legal rule which, if made in the manner recognised by the
legislative power in the state, is valid irrespective of its content in otherwords that as long an
elected parliament debates and makes the law everyone must abide by it

1. Austin’s Theory
Austin is perhaps best known for developing the command theory of law. He argued that a
law is a,
“command from a sovereign whom the population at large is in the habit of obeying, and it
is reinforced by the availability of a sanction”
Put simply, laws are orders backed by threats. A law, therefore, is the expressed wish of the
sovereign and as such is distinguishable from other commands such as those from God or
from an employer. The sovereign is the person or body whom others habitually obey, and
who is not in the habit of giving obedience to anyone else.
As a legal positivist, he insisted on the separation of law and morality.
However, he developed a much more sophisticated model than Austin’s to explain the nature
of law. There are, he argued, two categories of rules,
A. primary
B. secondary rules
which, in combination, form the basis of a functioning legal system.

Primary rules ​either impose legal obligations, as in criminal law, or they grant powers, as in
the power to make a will in the law of succession, or the power to enter into a contract.

Secondary rules​ are concerned with the operation of primary legal rules.

PROFESSOR HART
Hart identified three specific secondary rules.
Firstly, the rule of recognition sets criteria for identifying primary legal rules. These criteria
would include reference, for example, to Acts of Parliament and judicial decisions.
Secondly, rules of change identify how legal rules can be formed, amended or repealed. For
example, in the case of an Act of Parliament, reference would be made to the various
readings in the House of Commons and the House of Lords, and to the need for royal assent.
Thirdly, rules of adjudication enable the courts not only to settle disputes, but also to
interpret the law.

Hart argues that a legal system is established by the union of these two sets of rules.
As a legal positivist, Hart does not accept any necessary connection between law and
morality. In other words, the validity of a law is not dependent upon its moral acceptability.
Even a morally repugnant law may be legally valid. However, that does not mean we must
obey laws that are morally repugnant. Obedience remains a matter of personal decision or
conscience.

NATURAL LAW THEORY

Natural law is a theory that says there is a set of rules inherent in human behavior and human
reasoning that governs human conduct. Natural law is preexisting and is not created in courts
by judges. Many schools of thought think that is passed to man through a divine presence.
Philosophers and theologians throughout history have differed in their interpretations of
natural law, but in theory, natural law should be the same throughout time and across the
world because it is based on human nature, not on culture or customs
Natural lawyers reject the positivist view they believe that the validity of man-made laws
depends upon their compatibility with a higher, moral authority where laws do not satisfy the
requirements of this higher moral authority, then those laws lack validity.

1. ​Thomas Aquinas
Thomas Aquinas was a 13th-century Catholic philosopher and theologian, who devoted his
life to scholarship, in particular to the study of Aristotle. One of them, ​Divine law is
concerned with the standards man must conform to in order to attain salvation. These are
revealed to mankind by inspiration or revelation.
For example
The Ten Commandments contained within the Bible.
Divine law removes the need for mankind to be in any doubt.
Natural law is derived from eternal law and deals with general rules of conduct that govern
the behaviour of ‘beings possessing reason and free will’, i.e. humans. It is implanted in us by
God as part of our nature, and so we have a natural inclination to behave in a way that fulfils
our purpose in life. These include the inclination to preserve life, procreate, and live within
society. By reasoning upon natural law, certain general rules of conduct can be developed.
The first of these is to ‘do good and avoid evil’.

2. Lon Fuller
Human law is derived by reason from natural law. It is the result of a process of applying the
principles contained within natural law to particular geographical, historical and social
circumstances.
Lon Fuller was Professor of Jurisprudence at Harvard Law School. He is known as a natural
lawyer in that he rejected legal positivism: he refused to accept the belief that law has no
higher authority than that of a sovereign authority.
Fuller views law as serving a purpose. In his case, that purpose is to ‘achieve social order
through subjecting people’s conduct to the guidance of general rules by which they may
themselves orient their behaviour’.
For laws to be able to achieve this purpose, they must satisfy eight particular principles.
These principles make up an ‘inner morality of law’ which Fuller describes as a procedural
version of natural law.
According to these eight principles, laws should be:

1 in existence, not ad hoc

2 promulgated, i.e. published

3 prospective, rather than retrospective

4 clearly stated and comprehensible

5 consistent with each other

6 possible for people to obey

7 constant,

8 applied and administered as stated.

Hart’s criticism
Professor Hart, while not critical of the eight principles themselves, argued that Fuller was
not justified in calling them a morality. He illustrates his objection by reference to the art of
poisoning. Like law-making, poisoning is an activity with a purpose. The poisoner will
develop principles to render his art effective. However, nobody would consider calling these
principles the ‘inner morality of poisoning’. In other words, he accuses Fuller of confusing
efficacy with morality
SIMILARITIES BETWEEN LAW AND MORALS

1. They are both concerned with setting standards, which are essential for governing the
behaviour of individuals within society.
For example​, in order to avoid unnecessary death and injury, the law requires us to drive on
the left.
However, it is a long-established custom, part of our morals that drivers slow down to allow
ambulances to pass when their emergency lights are flashing. Both rules are concerned with
the behaviour of drivers and the saving of life.

2. Legal and moral rules employ similar language: they distinguish between right and wrong,
and they speak of duties, obligations and responsibilities.
For example,​ murder is regarded as wicked under both the legal and moral codes of conduct

3. Law and morality often coincide or overlap:

for example​, the Ten Commandments, given to Moses on Mount Sinai, continue to serve as a
moral code for many today. Indeed, these commandments contain a number of prohibitions,
which are to be found in the laws of even the most primitive societies.
In our age, the order: ​‘Thou shalt not kill’, is reflected in the section 302 of PPC and the
principle of the virtue of honesty, which lies behind the command not to give false witness,
can be seen in the development of the law in areas such as fraud (crime), misrepresentation
(contract), and defamation (tort).

DISTINCTION BETWEEN LAW AND MORALITY

LAW MORALITY

Law regulates and controls the external Morality regulates and con​trols both the
human conduct. It is not concerned with inner motives and the external actions. It is
inner motives. A person may be having an concerned with the whole life of man.
Morality condemns a person if he or she has
 evil intention in his or her mind but law some evil intentions
does not care for it

Law is universal in a particu​lar society. All Morality is variable. It changes from man
the individuals are equally subjected to it. It to man and from age to age. Every man has
does not change from man to man. his own moral principles
For example​, Traffic laws For example, ​The deabte of being pro life
vs pro choice

Political laws are precise and definite as Moral laws lack precision and definiteness
there is a regular organ in every state for the as there is no author​ity to make and enforce
formulation of laws. them.
For example, ​The legislature

Law is framed and enforced by a Morality is neither framed nor enforced by

determinate political author​ity. It enjoys the any political author​ity. It does not enjoy the
sanction of the state. Disobedience of law is support of the state. Breach of moral
gen​erally followed by physical pun​ishment. prin​ciples is not accompanied by any
For example, ​imprisonment and fine in case physical punishment
of rape.

Law falls within the purview of a subject Morality is studied under a separate branch
known as Jurispru​dence of knowledge known as Ethics

INFLUENCE OF LAW AND MORALITY

1. Changing moral values can lead to developments in the law.

Rape within marriage:
In the History of the Pleas of the Crown, Sir Matthew Hale had declared that ‘a man cannot
rape his wife’. This was based upon the doctrine of implied consent, i.e. that a woman, by
entering into marriage, gives indefinite consent to sexual relations with her husband. During
the 20th century, the courts succeeded in removing this immunity where there was a legal
separation order (R v Clarke)In these decisions the courts were eager to limit the moral
outrage that an acquittal would arouse. This immunity was weakened even further by the trial
judge in R v R (1991)
Before the case arrived at the House of Lords on appeal, the Law Commission had produced
a report recommending that ‘the present marital immunity be abolished in all cases’. The
House of Lords followed this recommendation. Lord Lane declared that no man is immune to
a conviction in marital rape cases. In this way, the law eventually caught up with perceived
public morality.

Abortion in UK
The Abortion Act 1967 represents an area of statutory reform introduced as a result of public
concern over the existing law. Under the Person Act 1861, abortion was punishable by up to
life imprisonment, even if performed for good medical reasons. The Infant Life Preservation
Act 1929 allowed a limited exemption from this general prohibition in cases where the
abortion was carried out in good faith for the sole purpose of preserving the life of the
mother.
In R v Bourne (1939), however, Bourne, an eminent surgeon carried out an abortion on a
14-year-old girl who had become pregnant as a result of violent gang rape by soldiers. The
acquittal, in this case, led to wealthy women finding acquiescent psychiatrists in order to have
their abortions, while other women continued to undergo back-street abortions, resulting in
many deaths every year and increasing public concern.

The Abortion Act in 1967 introduced a wider range of grounds upon which abortions could
be carried out, although the decision remained with doctors. Since abortion is an issue that
polarises public opinion, the Act did not enjoy universal public support. However, the law
had changed in response to changing public concerns.

2. Changes in the law can produce changes in morals

Article 377 amended in India

Homosexuality had been punishable by up to 10 years in prison under section 377 of the
Indian constitution, a relic of the Victorian-era laws imposed by the British Empire. It
outlawed sexual activities “against the order of nature” and was interpreted by police and
courts as referring to homosexuality.
On September 6, 2018, India’s Supreme Court has ruled to decriminalize homosexuality in a
historic and unanimous verdict handed down by a five-judge panel that will have a profound
impact both here in India and across the world.
This verdict has clearly changed the view of Indians towards homosexuality. A thing when
legal pave its way towards everyone conscience and thus bring a change in moral behavior of
masses.

LAW AND MORALS FROM THREE ANGLES

There are three angles through which the relation between law and morals can be seen

1. Morals as the basis of law

In ancient times there was no distinction between law and morals but as time passed common
law and sanctions were developed. Sanctions were moral based that is sanctions should be in
proportion to the harm done. Those common rules became law. Law and morals can never be
poles apart hence, it will have fatal results.
Example, ​If law and morals will be separated then a law passed to kill all the blue-eyed
babies would be legitimate.
2. Morals as a test of law
There needs to be a test for screening of the laws to ensure it is in accordance with natural
law and doesn’t violate the premises of morality. This theory was supported by the Greeks
and Romans.
3. Morality as an end of law
The word law itself implies the meaning of justice and equality. The objective behind law is
to ensure justice and secure the social interests of the people. The law should be tested by
weighing the loss and benefits experienced by the people.

EPILOGUE
There can never be a universal formula which could determine what should the law be used
to enforce morality. It can only be concluded that the level of enforcement of moral standards
depends upon case to case.

In the cases where morality shadows a good and beneficial effect on the society, there if
required, law could be used to enforce that positive morality. For example, in the case of
International Humanitarian Laws, certain moral standards are also recognized as a part of law
All cultures are expressions of deeply rooted values. Cultures are the historical outgrowth of
those values the historical human consequences of those values that sometimes lead to
compassion, beauty, war, deprivation, heroism, or degeneration. Law is a function of culture
all cultures have law which means that law is a function of values or morality. Law without
values is cultural suicide, which is what those who wish to separate the one from the other are
going to produce, whether they wish to or not. We must remind ourselves repeatedly that the
best habitat in which to raise ennobled citizens is a well-ordered society, one in which law is
rooted in morality. We dare not forget that law is both an expression and shaper of the
conscience of a nation. Consequently, the near-sighted and misguided movement to separate
law from morality is as dangerous as it is impossible. Both for our nation and for us as
individuals, our character is our future. Morality is destiny.

​REFERENCES
Jurispreudence by V.D.Mahajan (chp5 and pg97-109)
Philosophy, Morality and Law By Ronald M. Dworkin
http://www.legalservicesindia.com/article/1842/Law-and-Morality.html
https://www.lawyersnjurists.com/article/law-and-morality/
http://www.cormacburke.or.ke/node/1108
https://www.lawteacher.net/free-law-essays/medical-law/relationship-between-morality-and-t
he-law-medical-law-essay.php