Author: Priyanshi Soni, Karnavati University, United World School of Law, Gandhinagar, India
To the Point
The core concept of law and morality is one of the debating subject when it comes to that what is the interconnection between the same. While law is a set of rule governing the actions of the people, morality on the other hand is that belief and the ethics governing the individual behavior. Despite having different meaning and different interpretation, the two concept generally overlap with each other. Various case studies have been analysed in order to get the perfect opinion on the moral limits of law and its legal enforcement.
However, in some cases the judge has tried to cut on to the demoralize moral that were in consistent with the legal framework and thus denotes the moral limits of law. This research, thus navigate the essential core concept regarding the law and the morals and also has highlighted upon the core debate of Hart v Fuller with key theoretical frameworks. Thus, law and morality are two distinct interconnected words that simultaneously play important role in the society. While law is formal and codified, morals are based on informal and upon the contingency. Thus, understanding both of these aspects differently can promote harmony in the society.
Abstract
The relation and the interconnection between law and morality has been a debate in the jurisprudence. Both the law and morality has different meaning and interpretation, still they are interconnected. Many jurist had argued and criticized that law and morality should be different, whereas some argue that the law would be unjust if it is not according to the moral standards and the principles. Through this research paper, the aim objective highlighted above is the different theoretical understanding of different schools of jurisprudence and highlighted the Hart v Fuller debate and the substantial difference between the law and the morality. Through judicial precedents and case analysis, a more broad understanding has covered regarding the moral limits of law and its legal enforcement. The paper is purely based on doctrinal analysis with different legal texts and case analysis.
Keywords
Morality, Law, Precedent, Natural School of law, Hart, Fuller, Legal Enforcement, Analytical School of Law and jurist.
The Proof
The key jurisprudence theories have provided a contrasting view on the aspects of morality and Law. The theories of Jurisprudence provide the basis contributions and the opinions of the Jurist in defining what is morality and how does it different from the Law or whether it should be included in the aspects of law or not. The prominent theories that this section of the article contributes are Natural School of Law and Analytical School of Law. The research also aims to provide its view on the very important debate regarding the law and morality of HLA Hart and Fuller.
Natural School of Law
The Natural School of Law is the imperative law which defines that law is derive from the universe i.e the God and derives its sources from the nature. It is a God may law and includes certain principals such as equality, Good Conscience, Freedom, Democracy and Ethics4. It supports the idea that the law must serves the common good in the society and should uphold the morality. The school is of the belief that any law that is made is not in accordance with the morality and not a valid law. This holds a quite interconnection between the Law and the Morality.
The classical Jurist of the school such as Aristotle and Cicero believed that there is a connection between the law and the morality. St. Thomas Aquinas, another Jurist presented his view that the law should derive from the divine power and if anything is against the power then it is an unjust law.
Thus, Natural School provides a deep interconnection of law and morality. It provides the foundation of the legal enforcement of morality and any law is unjust if it lacks the moral principal even if it is procedurally and legally correct.
Analytical School of Law
With the response to the interconnection between the law and the morality under the Natural School of Law, the Analytical School of law came into the picture. It separates law from morality and provides that morality cannot be the basis while the framing of the law is done. The legal enforcement of the law is not depended on the moral principals. According to this, a law can still be valid if it does not have any moral character. Unlike the natural school of law, the law does not have any connection with the moral standard5. It emphasizes on the legislation that makes the law rather than on the morality basis.
In this school, the prominent Jurist – John Austin has played a very significant role by defining the law is a command of sovereign which is backed by sanction. According to him, he properly makes the difference between the law and the law which lack the sanction. For him, the law should contain 4 major principals which are sovereign, sanction, command and duty. Another Jurist HLA Hart proposed that there are major 2 primary source of law which are primary and secondary rules and also propose that law is different from morality and the aspects of morality shall not be the foundation of the legal rules and principals.
Analytical school is particular important in providing and clarifying the concept of the law and its consistency. By removing the moral principal and separating it from law, it creates a sense of integrity.
Hart v Fuller Debate
The Natural School of Law and the Analytical School of law has different opinions when it comes to the interconnection between the law and the morals. One such significant debate from these school is of Hart v Fuller debate.
The Hart and the Fuller debate was around the case where the women during the Nazi’s Law had reported her husband to the Gestapo for going against the Hitler’s Law and for the consequences he was sentenced to death. Later after the imprisonment, the husband files then case against the German women. The whole issue was that whether the actions of the women was justified regarding the Nazi’s law or not.
Thus, Hart argued that law and morality cannot be interconnected and are separable. According to him, the law will still be valid even if it is immoral. He proposed that the act of the women was justifies because it was according to the Nazi’s law and thus even if it is immoral it will be valid as it was enacted as per the legal system.
Fuller on the other hand, believed that law and morality should be interconnect and the law will be not valid one if it is not considered as a true law. He contended that the fundamental immoral law cannot be considered as a valid one.
According to him, the nazi’s law failed to be consistent with the morality and hence he classified them a non – moral laws.
Thus, this debate highlights the tention between the legality and the morality and that whether the law should be considered as valid one or not according to the Nazi’s law.
Use of Legal Jargon
Legal enforcement of morality refers to the practice by the legislature and the state to enforce and upholds the morals in the society. In simpler terms it means as to what and till which extend the law should enforce the morality. It refers to the use of legislations and the judge made laws to include morality and comply with the moral laws. The traditional view of the law is that it exists to enforce the public moral standards and the people who will do the immoral act which are against the moral principals should be punished. However, some argues that this will reduce the right over the personal freedom and the autonomy. Different philosophers presented their opinion and given their theories regarding the enforcement of law and morality, the natural school of law believed that the law that is to be enforced should be based on the moral principal and standards. While the analytical school believe that law will still be valid even if it doesn’t considered morality as the basis of the law. Mill’s harm principle, articulated in his work On Liberty, asserts that the only justifiable reason for exercising power over individuals against their will is to prevent harm to others. Morality, under this liberal model, is a matter of personal autonomy unless it leads to tangible harm. Legal enforcement of morality, therefore, should be limited and cautious, lest it encroach on individual liberty.
Case Laws
There are certain rules and the laws which the legislature and the judges has made which have include the aspect of morality into the legal enforcement of law. This section of the paper aims to present a view on the recent landmark judgements and the case laws where the judges have tried to include the morality into the legal enforcement of law.
One of the most significant example is of Same Sex Relationship. The Supreme Court in the case of Navtej Singh Johar v. Union of India, has decriminalized Section 377 of IPC which says that,
“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” The Supreme Court in the year 2018 has decriminalized this Section in order to bring the light to the equals right to the LGBTQ+ Community and marked a significant shape towards the shift towards the Justice and Equality in our country. This was the example that denotes that law could be enforce to bring societal moral change into the society.
In the Sabarimala Case – Indian Young Lawyers’ Association v State of Kerala, the issue was regarding the entering of women in the Sabarimala Temple while they were in the menstrual cycle. The court ruled that denying women the right to visit the temple when they are during their menstrual phase will be violative of the basic constitutional rights. The ban was justified because of the religious and the moral value that were deep rooted there long back ago. The judgement is a perfect example showing a shift from the traditional or religious belief and morals that menstruating women cannot enter the temple to the constitutional morality which upholds the framework in the constitution. This shows the moral limits of the law, that how far the law should treat the morality while enforcing or creating some rules or laws in the society.
In the case of Sayora Bano v Union of India, the issue was regarding the abolishment of triple talak under the Muslim Personal Law. It gave the Husband the unilateral right over his wife to say talak 3 times at any moment without even getting the consent of the women. This belief and the tradition were widely accepted during that time because of the patriarchal thinking of people. However, the court ruled that this practice was widely discriminative of Article 14 and 21 of the Constitution and state that the personal laws cannot overpower and discriminate the articles of the constitution. The court did not allow the discriminatory practices regarding the religious practice and the rooted morals in the society and uphold the constitution morality and equity.
Thus, from the above case laws, the research tends to explain that how the Judges and the Judiciary has played a crucial role in discriminating the traditional moral practices and beliefs that were not in accordance with the constitution’s enriching principals. The three above case law highlights that though the moral that were discriminating in nature was deep rooted and practiced from a longer period of time, the court in the evolving years had decriminalize or struck down the particular practice in the society.
Conclusion
The research talks and presents about the law and morality concept and concludes that though there are different meaning, perception and interpretation of the term, there still exist an interconnection between the two of them which is generally essential when it comes to the framing of law. Through classical texts, academic scholars and precedents, there come the conclusion that often the courts had tried to interpret morality into the definition of legal enforcement of law and has prioritize constitutional morality over traditional moral, beliefs and traditions.
The research has also tends to create a balance between the basic understanding of law and morality and the theoretical understanding of both of them through different school of jurisprudence. The different jurist through their opinions and different had created a line between the interconnection of law and morality. Thus, moral limits of the law and legal enforcement of morality should be cautioned and balance and more clarity in needed over it.
FAQS
What is the difference between law and morality?
Law focus on what people have to do in certain situation and if not act then penalties and compensations will be imposed on them. Whereas morality is grounded on the morals, beliefs and traditions of the people and acting and considering those is upon them as it is subjective in nature.
What is constitutional morality?
It refers to the values and morals that are enriched in the constitution such as equality, fraternity, freedom and end dignity. There are certain fundamental rights and fundamental duties that are mentioned in the constitution that promoted sense of morality in the individuals.
How Natural School of Law is different from Analytical School of Law?
Natural School of Law provides a deep interconnection of law and morality. It provides the foundation of the legal enforcement of morality and any law is unjust if it lacks the moral principal even if it is procedurally and legally correct. Whereas, Analytical school of law separates law from morality and provides that morality cannot be the basis while the framing of the law is done and states that the legal enforcement of the law is not depended on the moral principals.
Can the aspects of morality be included in the legal enforcement of law?
There are certain rules and regulations which are made by the judiciary and judges to include the aspects of morality in the legal enforcement of law. There are various cases where the judges have tried to include morality into the law and also upholds the constitutional morality over traditional morality.