The relationship between law and morality has remained in question from the time of Plato. We have pondered on whether such a connection is even present from the time of John Austin and Jeremy Bentham[1]. A number of opinions have been entertained, from the rather extreme view held by Austin and the positivists that the law is completely independent of morality and exists regardless of it, and to the opinion held by the natural law theorists, that law and morality are one. But these are opinions, how do they translate and apply to the real world?
The prominent conception of the connection between law and morality is that the existence of law is in a way, to promote morality. There exist numerous assertions that even if the law may be distinguished from morals, morality continues to remain an integral part of law. This is exactly why it has been said that law in action is more than a system of rules, it involves the use of certain principles.
The famous “Case of the Speluncean Explorers” by Lon L. Fuller is an article that has contributed a great deal to the law and morality debate. The case makes its readers think whether the law, the primary objective of which is to ensure order and justice, does guarantee this in all cases or not. In order to make sure that the law protects the people, the inherent objective of the same is necessary to be looked at. Merely going by the word of the law with no regard to interpretation will give way to a world full of chaos. How do we as humans, know for a fact that some things are considered ‘wrong’ whereas some are considered ‘desirable’? This belief is inherent in the society we live in. One does not need to know of the existence of Section 300 in the Indian Penal Code to know that ‘murder’ is a punishable offence, rather, we as moral beings have derived the knowledge that points us to believe that murder of another human being is unacceptable. Murder was considered to be wrong from time immemorial, the Indian Penal Code has merely codified this existing belief.
Therefore, it is quite self-evident that there is a driving force behind the existing laws, and it ensures that the law is kept within bounds set by the society. What is to happen if one day a law is introduced legalizing theft? The people affected by this law will oppose it. Law exists by virtue of certain morals, and shall cease to exist by the absence of the same.
By virtue of some recent work in legal theory, especially by Ronald Dworkin, a subtler shape to the idea of a ‘necessary connection’ between law and morality has been developed[2]. Dworkin suggests that the rule of law needs fairness, which in turn requires interpretation by courts. The courts must interpret what has occurred before and has led to the law in presence so as to facilitate the carrying forward of the same. He also suggests that this can be understood by determining how judges must decide cases. By placing these ideas together, a notion of the ‘necessary connection’ between law and morality can be established. What law is can be easily understood by way of the interpretation of existing law, an interpretation that is faithful to the rule of law.
Officials working within a system may be regularly faced with a moral predicament. This may give rise to a significant conflict of duties. Very often however, the system does not merely contain a great deal of injustice, but is, morally bankrupt[3].
The implication of both law as well as morality is freedom and justice. Law is an admonition of free persons indicating what they are expected to do if they wish to live freely and responsibly in the society, which is carried with a sanction of punishment against anyone acting against the provided norms. It is pretty clear that morality cannot exist without the presence of freedom. Law may be successful in regulating the external conduct and actions of humans, however only morality can regulate the interior sphere of personal conduct. The ancient principle lex iniusta non est lex which means that an unjust law is not a law, is at the basis of several modern protests in the name of freedom. Justice is essentially a moral concept, and protests bear out of the intrinsic connection existing between law and morality.
In the present day and age, the sociological approach has gained immense importance given the ambitious aim of states at becoming ‘welfare states’. Aristotle always placed great value on the virtue as well as end goals of all that is around us. The sociological approach is likewise concerned with the ends that law is to pursue. Therefore, morals have gained importance in the subject of good law-making. The inhuman acts in the World Wars practically forced people to turn towards morals. If law is to carry the ability to connect with the people and remain closer to their lives, morals cannot be ignored.
However, this is not to say that the essence of morality in making decisions is always favorable. It may have to be sidelined if it proves to be an impediment to a law that is progressive. To cite an example, the judgement in the case of Navtej Singh Johar v. Union of India confirmed the rights of homosexuals and stated that “love is love itself”. There were several religious as well as moral objections to this judgement, but the court upheld a long-standing legal status for change in the society. Change is the law of nature and must not be stopped. The relationship between law and morality is rather complicated, nevertheless, morality is an essential feature of law.
Morality is one among many factors that influence law. Customs, personal laws, foreign principles, public opinion, etc. have effect on the formation of a law. An issue arises with the factoring in of morals in law due to the opinions and viewpoints of various schools of jurisprudence. However, regardless of this, morality and law are relevant at different levels of practice, and must be rightfully regarded with the same.
[1] Timothy C. Shiell, “Making Sense out of a Necessary Connection between Law and Morality” 1(3) Public Affairs Quarterly (1987).
[2] David Lyons, “The Connection Between Law and Morality: Comments on Dworkin” 36(4), Journal of Legal Education (1986).
[3] Ibid.
How can one measure/ascertain the current status of public morality?
Hello! Thank you for your question. Morality is not a term or concept that can essentially be quantified. It may be perceived, however impossible to quantify. The presence and effect of morality can be seen as increasing or decreasing through judgements and legislators. As the American realists such as Wendell Holmes put it, judges play the most crucial role in deciding the way we move forward as a society. When judges and the law attain certain aspects or morality, is when it may be possible to state that the presence of morality has increased.