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PHILOSOPHICAL ASPECTS OF LAW AND THE

/

MORAL LAW
INTRODUCTION
NO DISTINCTION IN ANCIENT TIMES
In the early sages 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.

A DISTINCTION DRAWN IN 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 the 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.

INDIA
As observed earlier, the ancient Hindu jurists did not make any distinction between
law and morals. Later on, in actual practice some distinction started to be observed.
The MIMANSA made a distinction between obligatory and recommendatory rules.
By the time the commentaries were written the distinction was clearly established in
theory also. The commentators pointed out the distinction and in many cases dropped
those rules which were based purely on morals. The doctrine of "factum valet" was
recognized which means that an act which is in contravention of some moral
injunction, if accomplished in fact, should be considered valid. However, this rule
does not apply to legal injunctions. In modern times, the privy council in its decisions
always made a distinction between legal and moral injunctions. Now there is no
longer any confusion between law and morals and when the law is gradually being
codified, there are little chances of such a confusion.

The legal positivism of AUSTIN which based law solely on the coercive power of the
state and SAVIGNY’s over-emphasis on past values and traditions had virtually
brought the development of legal reforms to a complete halt. Therefore, jurists from
Germany and France looked for a legal philosophy which could prevent stagnation of
law and create conditions favourable to its steady growth so as to meet the
complexities of the contemporary society. It was realized that law, in order to
command respect form the society, must have an element of ethical value so that it
may achieve the ideals for which it was meant. This resulted into emergence of a new
school of thought which has been called as the ethical/ moral or philosophical school
of jurisprudence.

MORAL/ ETHICAL LEGAL PHILOSOPHY

Legal philosophy must be based on ethical values so as to motivate people for an up­
right living. Since the science of ethics deals with the principles of morality which
moulds man’s conduct enabling him to distinguish between right and wrong and
respect the rights of order in order to maintain social harmony. The purpose of law is
to maintain justice and order in society and legal restrictions can be justified only if
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they promote the freedom of individuals in society. The ethical view ofjurisprudence
expounds the principle of law as it is “ought to be It is neither concerned with the
historical past nor with the analytical present, but with the future of law as it “ought
to be

The main features of the ethical jurisprudence may briefly be stated as follow:
1) The concept of justice has a philosophical or ethical content and law and
justice are closely inter-related concepts. Law is a means to attain the ends of
justice. Thus law is only an instrument towards the fulfillment of the objective
ofjustice.
2) The ethical view ofjurisprudence concerns itself with the manner in which the
law fulfils its purpose of attainment ofjustice.
3) The study of difference between the spheres of law and justice.
4) The ethical significance of legal conceptions.

The ethical or philosophical view considers law as the means by which individual’s
will is harmonized with the general will of the community. The proximate object of
jurisprudence is to secure liberty to the individual for the attainment of human
perfection. Thus, liberty is one of the essential pre-requsites for the perfection of the
human personality. It is in this sense that philosophical jurisprudence became the
common ground of moral and legal philosophy, and of ethics and jurisprudence.

HUGO GROTIUS, KANT, HEGEL AND SEBELLIGN are considered as the main
exponents of the ethical or philosophical jurisprudence,

EXPONENTS OF PHILOSOPHICAL/ ETHICAL JURISPRUDENCE

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.
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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 offreedom"

KANT, in his "Critique of Pure Reason" tried to draw a distinction between form and
matter. He observed that "the impressions of our senses are the matter of human
experience which are brought into order and shaped by human mind. Emotions
become perceptions through the forms of space and time, perceptions became
experience through the categories or understanding such as substance and causality,
quality and quantity the judgment of experience are linked with each other by general
principles". Human mind does not necessarily follow the necessity as it has a free
will. According to him, the freedom of man to act according to his will and the
ethical postulates are mutually co-relative because no ethical postulate is possible
without man's freedom of self-determination. KANT calls substance of ethical
postulate as 'categorical imperative" which is the basis of his moral and legal theory.

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.
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Thus, acts in harmony with the moral law are good in themselves. Actions done with
desires and feelings are immoral, it being of no consequence that the desires are pure
and the feelings the highest. Moral quality is an integral quality. It is KANT’s
dictum to do your duty, be the result what is will. Moral laws are not qualified by
experience. They are not relative to circumstances. In KANT’s opinion, if it is a
moral duty to tell the truth then every' person should tell the truth in every
circumstance. In the Mahabharat war, the life perpetrated by Yudhisthira and
conveyed to Dronacharya would have been an extremely immoral act in KANT’s
opinion. Moral laws cannot be violated in any circumstances whatsoever.

Elaborating his concept of "categorical imperative" KANT stated that "a man should
act in such a way that his maximum actions could be made the maximum ofa general
action". But he distinguished morality from law and contended that morality is a
matter of internal motives of the individual whereas legality is a matter of action in
conformity with an external standard set by the law. Thus, his legal theory is
basically modelled on what the law ought to be. KANT deduced the definition of law
from his categorized imperative and observed, "law is the aggregate of the conditions
under which the arbitrary will ofone individual may be combined with that ofanother
under a general inclusive law offreedom"1. Thus, KANT considered "compulsion" as
an element of law and a right is nothing but a power to compel. He believed that
equality is an implied condition of freedom and the right to property is an expression
of personality of man

MORAL JUDGMENT IS AN UNQUALIFIED JUDGMENT

KANT had absolute faith in the value of ethics. Moral laws are the orders of reason
while other laws are inspired by the desires. Law’s inspired merely by desires are no
more than hypothetical imperatives. They are dependent upon external result and
circumstances. Law of a sensual life contradicts the rational laws. External goal can
only be hypothetical imperative. For example, earning wealth cannot be an
unqualified command because it depends upon the situation, need and ability of the
individuals. But on the contrary, moral laws being rational laws, are categorical

KANT . Philosophy of Law (Hastic's translation) P.46

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imperatives. They have no scope for any exceptions and they must be satisfied in all
circumstances. Therefore they are categorical imperatives.

Other laws are based on experience. Moral law is "a-priori”. They are related not to
“what" but to “ought". They are axiological and not factual.

KANT pointed out that law, to be acceptable to people in general should have within
it an element ofjustness. According to him legislation could be effective only when it
represents the united will of the people. He upheld freedom of speech as a pre­
requisite of a good government.

As regards the function of the state, KANT asserted that it should confine itself to
maintenance of law and order and administration ofjustice. The citizens should have
the freedom of criticizing the government but they should never seek to resist it. He
believed in the universal world order and equality and freedom of states. He,
however, wanted the international law. to be effective, must have an international
authority superior to the member states.

FICHTE
FICHTE, deduced his legal theory from the inherent self-consciousness of a
reasonable man. He contended that freedom is necessarily and relative term
depending on mutual personal relations which regulate human conduct. It is the
moral duty of every person to respect the liberty of others, but a legal duty to do is
dependent on reciprocity. According to FICHTE, the state should protect only those
rights of individual which are necessary conditions of his personal existence. The law
must be directed to ensure justice.

As to the relation between individual and state, FICHTE pointed out that it is
regulated by three basic principles, namely,
1) An individual becomes a member of the state through fulfillment of civic
duties;
2) The law limits and assures the rights of the individuals; and
3) Outside his sphere of civic duties, an individual is free and only responsible to
himself.
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HEGEL (1770-1831)
HEGEL carried further the KANT’s doctrine of freedom of will. In his opinion, the
purpose of making laws is to reconcile the conflicting egos in society. This is
achieved by the merger of self-centred consciousness of each ego resulting into
universal consciousness. In other words legal right is the objective realization of the
tact that the freedom of each ego is limited by like freedom of other’s egos. Thus,
HEGEL believed that various manifestations of social life including law are nothing
but the result of an evolutionary dynamic process. He opines that the idea of freedom
has dominated man’s mind throughout the struggle for existence. Man has
successfully struggled for freedom for the bondage of the church which gave him
temporal freedom, his resistance to tyrannical rule gave him legal governments and
fight against economic enslavement brought him economic freedom. Thus the society
has always been changing and so has the law to meet the exigencies of time. All
laws, therefore, must conform to dynamic changes in society for the purposeful
attainment of human perfection.

According to HEGEL the state is the synthesis of family and civil society. It is a
unity of the universal principle of family and the particular principle of civil society.
It is thus an expression of the individual’s freedom in the form of universal self. He
emphasized three functions of the state, namely,

1) The universal,
2) The particular, and
3) The individual

The universal functions consists of formulation by laws, its particular function

includes application of law to special cases while the individual aspect is embodied in
the monarch.

Thus HEGEL is opposed to the democratic state and universal franchise. According
to him, the state is not the embodiment of the common will or the will of the majority,
but of the rational will. Monarch being an embodiment of the individual function of
the state, hereditary monarchy is justified as a philosophical necessity.
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HEGEL's most important contribution to legal philosophy is the development of the

idea of evolution. He contended that various manifestations of social life, including
law, are the product of an evolutionary, dynamic process. This process takes on a
dialectical form, revealing itself in thesis, antithesis and synthesis. The human spirit
sets a thesis which becomes current as the leading idea of a particular historical
epoch. In due course, against this thesis, an antithesis is set up and from the ensuing
conflict a synthesis develops which, absorbing elements of both, reconciles them on a
higher plane. This process repeats itself time and again in history.

HEGEL believed that legal history embodies within it, the march of freedom in civil
societies. Thus, bondage of the Church gave rise to temporal freedom, tyrannical rule
of despotic monarches gave way to legal governments and economic enslavement
under capitalism has given way to economic freedom. In this way society may
change and so also the law, with the evolution of the concept of freedom, the ultimate
object being to raise humanity to perfection in a given legal order.

SCBELLING (1775-1854)
SCBELLING advocated the view that law is a means by which the individual will be
harmonized with the general will of the community. Law achieves this harmony by
delimiting the sphere of freedom available to each individual.

It may be stated that the main thrust of the legal philosophy of KANT, FICHTE,
HEGEL and SCBELLING has been firstly, on jurisprudence as a means of attainment
of human perfection and secondly, to secure liberty to individuals in the society.
These legal thinkers considered liberty as the first pre-requisite for the development of
human personality. The legal theory propounded by KANT stands somewhere
between rationalist natural law theories of 17th and 18th century and liberalism of the
19th century. The legal philosophy of FICHTE was carried further by VACCHIO in
the 20th century and gave encouragement to modern fascism.

The legal philosophy advanced by HEGAL had mixed reaction from contemporary
jurists. His ideas were greatly admired by some jurists while others condemned them
as extremely dangerous philosophy of his time. Hegelian views regarding
relationship between state and individual and the purpose of legal theory have been
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greatly appreciated by many writers. But there are others who condemn him as one of
the greatest and most dangerous "dilettantes in legal philosophy".

The historical school under the patronage of SAVIGNY attached the views
propagated by the philosophical school that law is made consciously by human reason
embodied in legislation and asserted that law is in fact the product of Voikgeist i.e.
the people's genius expressing itself in the form of custom or traditions. The chief
defect of the philosophical theory of law lay in the assumption that an ideal law is
discoverable by reason and the actual system of law should correspond to this reason
based law. The ideology of the philosophical school was therefore, not tenable.

KOHLER (1849-1919)
KOHLER was much influenced by the Hegelian legal theory. He conceded to the
HEGEL’s idea of universal civilization but he did not agree with the view that there is
an eternal law or universal body of legal institutions uniformity suited to all the
societies. What may be good for one particular society may be necessarily so for the
other. He emphasised that human society is ever changing and progressing and law is
a means to respond favourably to these changes.

KOHLER defined law as "the standard oj conduct which in consequence of the inner
impulse that urges man towards a reasonable jorm of life, emanates from the whole,
and is forced upon the individual". In his book "Philosophy of Law" KOHLER
contemplates, vitalising of culture or civilization and this end is achieved through the
instrumentality of law.

KOHLER'S views about law and legal philosophy have been appreciated by DEAN
ROSCOE POUND who observed, "formulation ofjural postulates of the time and
* I

place is one of the most important achievements of recent legal science" . This is
indeed a significant contribution of KOHLER to the development of jurisprudential
thinking.

1 ROSCOE POUND: Interpretations of Legal History, P.150

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STAMMLER (1856-1938)
STAMMLER was a Neo-Kantian. He held a view that the two legal systems, namely,
1) historical and 2) philosophical, despite all their differences in rules and principles,
could work together in fulfilment of the social ideal. He advocated an alternative
theory of law and opined that apart from positive law which was investigative, there is
need for a just law1. According to him law is "just" if it furthers social ideal i.e.
harmonies individual interest with those of society. There are obviously two pre­
requisites for fulfilment of this social ideal. Firstly, it is necessary to maintain proper
interest of each individual, and secondly, social co-operation must be ensured among
them.

STAMMLER's views regarding legal theory are expressed in "The Theory of Law"
wherein he wrote, "there is not a single rule of law the positive content of which can
be fixed, a priori". He, however, believed that a theory of "just" law may well be
developed simultaneously with the theory of analytical positivism which is
investigative in character. According to STAMMLER, a law is just if it conforms as
the social ideal of harmonizing the interests of the individual with that of the society's
ideas. The social ideal represents the unity of individual purposes.

According to STAMMLER law is a volition. In other words, it relates to willingness

of the persons for whom it is made. It is a mode of ordering human acts according to
the relation of means and purposes. Sovereignty distinguishes law from arbitrary
volition of an individual. He tried to provide law a scientific footing by emphasizing
that just" law is the highest universal point in every aspect of the social life of man.

The contribution of STAMMLER to the jurisprudential theory has been summed up

by Dr.FRIEDMANN in the following words:

"STAMMLER was torn between his desire as a philosopher to establish a universal

science of law and his desire as a teacher ofcivil law to help in the solution ofactual
cases. The result was an 'ideal of justice' which is hybrid between a formal
proposition and a definition of social ideal, kept abstract and rather vague by the

' STAMMLER : The Theory of Justice, P.90

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desire to remain formal. STAMMLER produces solutions dependent on their specific

social and ethical valuations which it was his endeavour to keep out ofan idea meant
to be universal. His solutions were based on certain assumptions and those were the
recognition of private properly subject to certain limitations regarding its use and
equivalence of all uses of property regardless of their economic and social
importance".

STAMMLER's legal philosophy was later supported by Italian jurist DEL VECCHIO
who believed that positive law was an obstacle in the process of legal reforms.

DEL VECCHIO
DEL VECCHIO developed a theory of law similar to STAMMLER's legal philosophy
but quite independent of it. He was a great legal thinker of Italy and his writings were
known for his deep knowledge of philosophy, law and history. He believed that
human mind can discover rules of justice unaided by positive law. He was thus
convinced about the existence of the natural law and treated positive law as an inroad
to the process of legal reforms. In his view, the logical form of law was more
comprehensive than the sum of judicial propositions. The concept of law carries with
it an element of neutrality and therefore it is not proper to draw a distinction between
good and bad law or just and unjust law.

DEL VECCHIO treated law as a phenomenon of nature and an expression of human

liberty directed towards a definite purpose. For him, justice is an ideal concept
postulated by the inner conscience of man and a quest for equal freedom of mankind1.

It is significant to note that the earlier legal philosophy of DEL VECCHIO reflects the
influence of KANT and FICHTE's writings on him but his later work on relation
between individual and state shows that he was also influenced by Hegelian legal
philosophy.

Some of the jurists, notably, BRUNS (1816-1880) were also inspired by the views of
the philosophical jurists and laid greater emphasis on the human and universal

DEL VECCHIO : Formal Bases of Law. P.322

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character of law which led to the development of a new legal philosophy "which no
longer regards as its task the discovery ofan absolute law ofnature, but only seeks to
recognize in their universality and necessity, the general conceptions and ideas which
attain concrete historical manifestation in the single national system of law". This led
to socio-legal approach to law in subsequent years.

GUEIST (1816-1895)
GUEIST supported SAVIGNY's theory of law but differed from him and held that
fuller development of legal science was possible by the re-statement of the natural law
doctrines in the changed socio-legal context.

The contribution of philosophical school of jurisprudence to the development of legal

theory has been assessed by W1NDSCHILD (1817-1892) who observed that the
antithesis of philosophical and historical jurists has disappeared since each of them
have appreciated the correctness of the main tenets of the other, thus paving way to
evolution of synthetic juristic philosophy in later time.

The cumulative effect of the legal philosophies developed by historical and ethical
jurists and the impact of analytical positivism of AUSTIN, generated a new wave of
thinking about the true nature, context and purpose of law and its relation with the
state. Analytical school had ignored the social aspect of law and denounced its ethical
basis. Instead, it emphasized only on two aspects of law, namely,
i) Its coercive force, and
ii) Omnipotence of the sovereign authority

Commenting adversely on rigid approach of analytical positivists to law, Professor

ROBSON APTLY remarked that since BENTHAM's time English legal thought has
*

become unduly narrow and devoid of imagination, it hardly gives any place to
philosophy, ethics or sociology in the formulation of laws.1

It was JETHRO BROWN who was a Neo-Austinian, gave a new content to

AUSTIN'S definition of law. He interpreted law, "as an expression of the general will

1 ROBSON • Civilization and the Growth of Law, P.254

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affirming an order which will be enforced by the organized might of the state and
directed to the realization ofsome real or imaginary good"1. Thus, he gave an ethical
element to the definition of law which AUSTIN had ruthlessly denied. JETHRO
BROWN conceived that law is not merely a command of the sovereign but it
proceeds from the general will of the people and thus contains within it an element of
socio-ethicai purpose.

SALMOND also contended that customary law is material source of law and that
international law is not a mere positive morality but it is a specie of conventional law.
it is, therefore, evident that he also acknowledged the role of historical and
philosophical legal thinking in the formulation of law and legal precepts. SALMOND
further remarked that a book of ethical jurisprudence may concern itself with all or
any of the matters including the concept of law, the relation of law and justice, the
manner in which law fulfils its purpose of maintaining justice, the distinction between
the sphere of law and the subject-matter of law and other branches of right, and the
ethical significance and validity of those legal concepts and principles, which are
fundamental for the proper subject-matter of analytical jurisprudence. He pointed out
that the scope of ethical jurisprudence does not extend beyond general theory of
justice in relation to law and the matters such criticism of the actual legal system, or
contemplation of an ideal legal system, etc. pertain neither within the scope of
jurisprudence, nor to legal philosophy but to the science of legislation.

It may be concluded that philosophical school of jurisprudence is mainly interested in

the, "development of the idea ofjustice as a ethical and moral phenomenon and its
manifestation in the principles applied by the courts".

Though the doctrinal preachings of the three main exponents of philosophical school,
namely, KANT, FICHTE and HEGEL exercised great influence on European legal
philosophy; they did not produce a new school of jurisprudence as such. The reason
being that their legal philosophy partly emanated from natural law theories and partly
form the analytical positivism. Therefore, there was a decline in the philosophical
school when the historical school gained momentum.

' JETHRO BROWN : Austinian Theory of Law : Excursions P.537

PROFESSOR LON LUVOIS FULLER (1902-1978)
Professor LON L. FULLER is a renowned contemporary jurist of new natural law in
the twentieth century. He taught in the universities of Oregon, Illinois and Duke and
joined in 1940 Harvard law school and from 1947 till death in 1978 he was Carter
Professor of General Jurisprudence. His famous works on legal philosophy include -
the law in Quest of Itself (1940) and the Morality of Law (1964) beside many
research articles especially positivism1 and fidelity to law - a reply to Professor Hart.
In his the Law in Quest of Itself, Professor FULLER makes an excellent exposition
and analysis of the two main trends in legal philosophy described as legal positivism
and natural law and denies that there can be rigid separation between “is and ought".
"The morality of law” is a significant in the history of legal philosophy which
contains insights into relation, between law and morality.

RESURGENCE OF NATURAL LAW - FULLER

As already observed FULLER makes attempts to argue against the separation of law
and morals. In his Morality of Law - FULLER expounded the nature of morality and
the theory of law and the relationship between law and morality.

dl N-1 ruRE OF Morality

According to FULLER ‘‘morality" has many uses and several meaning as it is
and morality as sought to be. He attempts to make a distinction between "the
morality of duty" and "the morality of aspiration" which in other words can
be described as "moral duties ” and "moral ideals". He further divides moral
duties into affirmative actions and torbearnaces understood as moral duties
and moral prohibitions or "affirmative and negative duties". These further
breakdown into the basic sub-categories:

i) Personal virtues e.g. courage &

ii) Social ends, e.g. justice

' HART . The Concept of Law, PP 189-195 (1972)

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Si Morality of Aspiration

FULLER makes distinction between morality of duty and morality of

aspiration. According to him morality of duty embodies “the most obvious
demands of social living” which means basic requirements of social living
whereas morality of aspiration “is the morality of good life, of excellence, of
Jiillesl realization of human powers". Such obvious demands of social living
may be duly not to engage in various sex activity. Such duties ought to be
considered "obvious demands of social living”. Secondly, he contrasts
between morality of duty and morality of aspiration.

Morality of aspiration is that we do not praise men for doing their duties but
we do praise them for moral excellence, e.g. Z an expert swimmer saving a
drowning child from a swimming pool; X, who is chronically ill continue to
work to support his family or Y, a young damsel sacrifices her social life for
her aged and widowed father. In each of these examples there is something to
praise and something to aspire to. Yet in each there is performance of duty.
Third, morality of duty generally requires only forbearance while morality of
aspiration is in some sense of affirmative. Furthermore, morality of aspiration
for some persons consists very largely a life of abstinence. The fourth
difference between the two is that morality of duty can be enforced more or
less by law whereas morality of aspiration cannot. And, fifthly, according to
FULLER moral duties are “sticky " and inflexible while “it is the nature of al
human aspirations towards perfection to be liable and responsive to changing
conditions, etc. ”. Such a distinction between the two moralities is further
multiplied by FULLER. However, the utility of the distinction between moral
and duties and morality of aspiration is useful as it provides a partial inventory
of elements of law and is helpful in understanding comparison between law
*

and morality.

FULLER : NATURE AND CONCEPT OF LAW

According to Prof. FULLER, law or legal system is not to be studied as a data or a
natural fact. It is rather an activity that is the “product of sustained purposive effort".
He, therefore, regards law as a purposive system and its particular purpose being that
subjecting human conduct to the control and guidance of legal rules. In him “law is
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the enterprise of subjecting human conduct to the governance of rules ”, FULLER

lays down eight requirements on "inner morality" of law which legal system must
comply if it is to succeed as law. Conversely speaking, FULLER illustrates ‘‘eight
ways to fail to make law". These eight principles are not conceived as maxims of
substantive natural law. They are instead seen as a kind of "procedural natural law”.
They are... '
1) There must be rules “no adhocism ",
2) The rules must be publicized,
3) Retrospective legislation must not be used abusively,
4) The rules must be understandable,
5) The rules must not be contradictory,
6) The rules must not require conduct beyond the power of the affected parties,
7) The rules must not be changed so frequently that the subject cannot guide is
actions by them, and
8) There must be congruence between the rules as announced and their actual
administration.

A ruler, says FULLER, who tried to subject human conduct to be governance of rules
but failed to fulfil these conditions would fail in his purpose. Hence, the fulfillment
of all these conditions is necessary to subject rule of law to these demanding process
of law. These conditions constitute what FULLER calls the “inner morality of law”
and are a procedural version of new natural law.

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
 136

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 oj 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. He, therefore, found the system of law
logical, coercive and enforceable distinct from ideal systems or law which should be.
The substance of this system of law appears to be moral akin to penal law or criminal
awl which mostly contain "do’s" and "don ’ts” in the form of orders, or commands to
be obeyed through acts of omission or commission. Strict adherence to such penal
rules do not entitle any moral or ethical consideration. Further stipulation of sanction
gives punch to the system and is the essence of AUSTIN’S nature of law. According
to AUSTIN, the notion of command is "the key to the science ofjurisprudence 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)

Professor HERBERT LIONEL ADOLPHUS HART is the principal of Brasenose
College, Oxford. He practiced at the chancery bar and then became professor of
jurisprudence at Oxford 1952-68 before his appointment at Brasenose college. He is
the author of "The Concept of Law (1961), Law, Liberty and Morality (1963), The
Morality of the Criminal Law (1965). Punishment and Responsibility (1967)’’ and
with A.M. Honore, "Causation in the Law (1959) ’’.
 137

LAW AND MORALITY - CO-EXIST

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 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

11 Importance
*

An essential feature of any moral rule or standard is that it is regarded as

something of great importance. It cannot be omitted in any faithful account of
the morality of any social group or individual nor can it be made more precise.

1 The Concept of Law. PP. 169-176

 138

This is evident in several ways, namely,

i) First, moral standards are maintained against the drive of strong
passions which they restrict;
ii) Secondly, in serious forms of social pressure exerted not only to obtain
conformity in individual cases but to secure that moral standards are
taught or communicated as a matter of course to all in society.
iii) Thirdly, if the moral standards were not generally accepted for
reaching and distasteful changes in the life of the individuals would
occur.

For instance, says HART the most prominent part of the morality of any
society consists of the rules concerning sexual behaviour and it is far from
clear that the importance attached to them is connected with the belief that the
conduct they forbid is harmful to others. Even in the so-called modern
societies sexual morality is most prominent aspect of what ordinary men think
of morality.

Hi Immunity from Deliberate Change

It is a characteristic of a legal system that new legal rules can be introduced

and old ones changed or replaced by deliberate enactment. By contract moral
rules or principles cannot be brought into being or changed or eliminated in
this way.

in) Voluntary Character of Moral Offence

Moral responsibility or blame is a matter of internal matter while law is

generally concerned with “external" behaviour “mens rea" playing an
important part in criminal responsibility. If a particular person has offended
*

against moral rules or offences and succeeds in establishing that he did this
unintentionally he is excused from moral responsibility and to blame him in
these circumstances would itself be considered morally objectionable.

n'j The form of Moral Pressure

A further distinguishing feature of morality is the characteristic form of moral
pressure which is exerted in its support. While the typical form of legal
 139

pressure may consist in physical punishment or unpleasant consequences with

morals on the other hand typical form of pressure consists in appeals to the
respect of rules and of the demands for morality appeal to conscience.

LEGAL PHILOSOPHY OF LAW AND MORALITY

Writers like AUS1TN, KELSEN and others have tried to make a clear distinction
between law and morality although the two are bound to be affected by each other.
The whole of life of man cannot be regulated by law alone and the same is true of
morality. Law is concerned with the external actions of individuals and morality with
their inner conscience.

According to ARNDTS, "there are four points of difference.

1) In law man is considered as a person, that is because he has a free will; in

morals we have to do with determining the will towards the good;
2) Law considers man only in so far as he lives in community other others;
morals give a guide to lead him even if he were alone;
3) Law has to do with acts in so jar as they operated externally; morals look to
the intention - the inner determination and direction of the will;
4) Law governs the will so far as it may be external coercion; morals seek a free
self - determination towards the good."

According to PATON, "morals or ethics is a study of the supreme good. Law lays
down what is convenient for that time and place; ethics concentrates on the individual
rather than society; law is concerned with the social relationship of man rather than
the individual excellence of their character; ethics considers motive all-important;
law insists merely by conduct with certain standards and seldom worries for motive.
4

But it is loo narrow to say (hat ethics deals only with the individual or that ethics
treats only of the interior and law only o] the exterior, for ethics in judging acts must
consider the consequences that flow jrom them. Moreover, ethics duties of man
cannot be considered without considering his obligation to his fellows or his place in
society".
 140

According to VINOGRADOFF, "law is clearly distinguishable from morality. The

object of law is the submission of the individual to the will of organized society while
the tendency of morality is to subject the individual to the dictates of his own
conscience".

According to POLLOK, "though much ground is common to both, the subject-matter

of law and ethics is not the same. The field oflegal rules of conduct does not coincide
with that of moral rules and is not included in it and the purposes for which they exist
are different".

According to DUGUIT, "law has its basis in social conduct. Morals go on intrinsic
value of conduct. Hence it is vain to talk about law and morals. The legal criterion is
not an ethical criterion."

According to CAPITANT, "social organization rests equally on law and morals. The
precepts of both are obligatory; those of law are enforced by public authority; those
of morals are addressed only to the individual conscience".

According to LONGO, "ethics is the common foundation Morals regard man with
respect to his ultimate destiny; law regards him with respect to conditionally good in
an external social relation".

According to KORKUNOV, "the distinction between morals and law can be

formulated very simply. Morality furnishes the criterion for the proper evaluation of
our interests; law marks out the limits within which they ought to be confined".

According to POUND, "law and morals have a common origin but they diverge in
*

their development".

According to BENTHAM, "in a word, law has just the same centre as morals but it
has by no means the same circumference".

According to PATON, "since law exists to harmonize the purpose of individuals, law
itself strives towards justice
 141

According to another writer, "law does not aim at perfecting the individual character
of man; but at regulating the relations of the citizens. The office of law does not
extend to that which lies in the thought and conscience ofthe individual. The possible
coincidence of law and morality are limited by external morality, 'thou shalt not
steal' may be and is legal as well as moral, the commandment 'thou shalt not covet'
may be of greater importance as a moral preaching but it cannot be a legal one. In
this case, the law of the legislator will be inoperative unless an external list of
covetousness were assigned by a more or less arbitrary definition and then the real
subject-matter of the law would be not the passion of covetousness but the behaviour
defined as evincing it".

According to POLLOK, it is true that much ground is common to both law and ethics,
the subject-matter of the two is not the same. The field of legal rules of conduct does
not coincide with that of moral rules and is not included in it. The purposes for which
they exist are distinct. Law does not aim at perfecting the individual character of men
but at regulating the relations of citizens to the common wealth and to one another.
As human beings can communicate with one another only by words and acts, the
office of law does not extend to that which lies in the thought and conscience of the
individual.

The possible coincidence of law with morality is limited by the range of that which
theologians have named external morality. The commandant that "thou shalt not
steal" may be and in all civilized countries is both legal and moral. However, the
commandant "thou shalt not covet" may be of even greater importance as a moral
precept but it cannot be a legal one. A legislature may make a law against
covetousness but it would be inoperative unless an external test of covetousness were
assigned by a more or less arbitrary definition. In that case, the real subject-matter of
law would not be the passion of covetousness but the behaviour defined as evincing it.
The judgement of law has to proceed upon what can be made mainfest. Action and
intent shown in acts and words, not the secret springs of, conduct in desires and
motives, are the normal materials in which courts of justice are versed. With rare
exceptions, an act not otherwise unlawful in itself will not become an offence or legal
wrong becausd it is done with a sinister motive. It will not.be an excuse for an art
 142

contrary to the general law to show that the motive from which it proceeded was
good. If the attempt is made to deal with rules of purely moral kind of judicial
machinery, one of the two things will happen. Either the tribunal will be guided by
mere isolated impressions of each case, and therefore will not administer justice at all
or precedent and usage will be-got settled rule and the tribunal will find itself
administering a formal system of law which in time will be as technical and appeal as
openly to an external standard as any other system.

According to philosophy , the word “ethics" is derived from the Latin ethos, which
means character. In this way, ethics is the science of character, habits of activity or
behaviour of human beings. Ethics is also called moral philosophy. The word moral
is derivative for the latin word "mores" meaning conventions or practice. In this
way, literally means the science of convention or practice. Ethics is the science of
human conduct. Habits and behaviour are related to the permanent characteristics of
human character. Conduct is the mirror of character. Thus, ethics is the science of
character or habit. It evaluates human habits, character and voluntary determinations.

Ethics is the science of ultimate good. In the words of JAMES SETH, “as the science
of the good it is the science par excellence of the ideal and the ought ”,

Ethics is the science of character. But it is different from the natural and factual
sciences. It is a normative science.

According to MACKENZIE, ethics can be defined as ‘the study of what is right or

good in conduct". In this definition ethics has been accepted as the study of both
right and good. But there is difference between right and good. “Rectus” the Latin
word from which right has been derived, means straight or good. Thus, good
behaviour will correspond to law. Good comes from the German “gut" meaning that
which is useful for the supreme good.

In this instance, good is that which leads to supreme good. Mostly, good is taken to
mean an end, not a means to an end.
 143

In this definition, MACKENZIE has reached a compromise between two conflicting

doctrines. The first doctrine is of the intuitionist’s view, according to which ethics is
the silence of right. Right is the basic concept. There is obligation in ethical laws.
They ought to be obeyed under every circumstance. It is a duty to act in accordance
with ethical laws and wrong is to act against them. Obeying moral laws is ethical.
Lawful activity is right and unlawful activity is wrong. Ethical law is the determinant
of good or bad in human actions. According to this school, ethics is the science of
right. It searches for ethical laws. These ethical laws are unrelaxed ideals and man is
bound to follow them. Thus, this theory becomes duty-predominating ethics.

FORMALIST’S VIEW
According to the formalists, ethical laws are ends in themselves. They are not the
means to some other ideal. For duty KANT presented the theory of duty and
accepted goodwill as the only good. He says, “there is nothing in the world, or out of
it, that can be called good without qualification, except a good will”. In KANT’s
view, goodwill is itself good. Its goodness is not dependent upon its result. Good wil
is will according to moral law. Formalists believe that the ethical law stand self-
proved. The conscience is innate and it acquires the knowledge of good and bad
easily. Ethical laws are universal. They are simple and of categorical nature.

TELEOLOGICAL VIEW
Contradicting the intuitionists and formalists, the ideologists believe that good is the
supreme element. With them ethics is the science of good, not right. Their point of.
point of is teleological. Duty is for ethical emancipation, not for duty’s sake. Laws
are not for sake of law, but for the attainment of good. To abide by laws is a duty
because it achieves ethical good. Any act is right or wrong in relation to the standard
of good. Teleological ethics searches for the supreme good of human beings. That
supreme good is the highest end. Any act leading to its good while any act hindering
progress is evil. Ethics strives for this supreme human good or the highest idea of
human life. Right and laws are merely the means to such an end. Thus, the definition
of ethics and ethical concepts such by the Ideologists differ from that of the
formalists. The teieologist morality searches for the ideal as well as the highest form
of its self at the same time that it searches for the duties of mankind. It discusses
those qualities which elevate the character and which help in the attainment of the
 144

supreme aim. BENTHAM, MILL, HENERY SIDGWICK, etc. believe in the

teleological point of view and postulate that the right and wrong of any action
depends upon the result.

SYNTHESIS OF THE ABOVE TWO OPINIONS

In his definition of ethics, MACKENZIE synthesizes the above mentioned view
points.

Ethics studies right and good in human conduct, meaning whereby, that it directs hat
our conduct ought to be aimed at our ideal. It is related to those laws or general
principles in accordance with which we ought to work for the attainment of this goal.
But a study of the aim must precede our acquisition of knowledge relating to the
goodness of such conduct. Of course, the ethical aims in the different stages of
human life and those in the different lives of different people may not be similar but
because ethics does not study any particular aspect of conduct but conduct as a whole,
its aim is the knowledge of that supreme goal which is the goal of each one of us.
This is called the ideal good. All the aims and activities of human life are directed to
the ideal good. The subject of the study of ethics is to find out what the ideal good is.
Without knowing it, it is not possible to decide about right or wrong. In this way,
MACKENZIES's saying that “ethics is the science or general study of the ideal
involved in human life ”, is quite realistic.

THE MORAL STANDARD AS LAW

According to the principle believing moral standard to be law, morality is based on
law. No activity is right or wrong in itself, law judges it. If it is according to law the
activity is right and if it is against the law, it is wrong. External laws can be classified
into the following four divisions - law of community, of group or tribe, of society, la
of state and law of God.

LAW OF COMMUNITY, GROUP OF TRIBE

In the past people were divided into small group, communities or tribes. Every group
had a leader whose order was carried out as a duty by every member. It was his duty.
This was the moral law of the community.
 145

But, then conflicts between leader and members of groups started. Sometimes the
orders of the leaders were mutually contradictory. Thus, it became essential for the
intelligent members to violate the orders. The free consciousness of man does not
like to submit to any external pressure. These forces do not create the ethical
“ought ”. Rational consciousness experiences the need for some more appropriate law
than external order. Moral law is not based on exercise of force.

LAW OF SOCIETY
Small groups combined to constitute societies. Man, is by nature a social animal. For
him, social opinion is very important. Thus, according to some thinkers; social law is
the standard of morality. They include public opinion, tradition, dogmas and
conventions. Any thing praised by society is good while anything condemned by it is
bad.

In the words of BAIN, “a moral act is an act prescribed by the social authorities and
rendered obligatory upon every citizen. Its morality lies in its authorities prescription
and not m fulfilling the primary ends oj the social institutions ”. Attached to these law
is the greed for social recognition and fear of social exile.

Thus, the law of society are based on the sentiments of people. They change with the
time and place. No universal law can be discovered in them. Often they are
contradictory too. Thus, they cannot form the basis of morality. Secondly, social
laws are based on fear and exercise of fear so that independent and fearless people
will not be afraid of violating them. Thirdly, social laws apply only to man’s external
conduct. Society cannot know the motivating causes of man’s actions. But morality is
dependent upon the internal aspect of activities. Fourthly, as a person’s intellectual
consciousness develops, instead, of blind limitation of public opinion he starts
criticizing social laws, in the light of reason. If they contradict intelligence he
becomes obliged to revolt against them. Fifthly, no external force can cerate moral
laws because moral laws are based on free will.

THE LAW OF THE STATE

HOBBES, BAIN, etc. look upon the laws of the state as the standard of morality. In
the words of HOBBES, “the civil law alone is the supreme court of appeal in all
 146

cases of right or wrong". In the words of BAIN, “morality is in every respect

analogous to civil government or the law of the land". In this way wrong acts are
those condemned by the government and right ones are those approved by it.

Arguments against the social laws apply also to the political laws. They are roughly
as follows:-

1) Political laws are susceptible to change alone with the state and government.
They differ from place to place and from time to time. Thus, everlasting
ethical laws cannot be based on them.
2) Political laws cannot or do not show the path in all aspect of life. Their field is
very limited. They cannot govern our internal self, motive and feelings. Thus,
their “directions cannot throw light on all pace of life ”.
3) Political laws are laid down for social welfare. Thus, they are merely means
not ends. They can be objected to if they are wrong and it will be only the
ideal of welfare which will judge their rightness or wrongness.
4) Political laws also are based on exercise of force and consequently cannot be
the source of moral laws.
5) Political laws are external while morality is internal and based on man’s
freewill.

THE LAW OF GOD

According to philosophers, like DESCARTES, LOCKE and PALEY, the standard of
morality is God’s mandate. Activities which do not violate God’s order are right and
those which do not wrong. God does not obey moral laws, the latter rather change
with His willful desire.

According to LOCKE, the only true basis of morality is God's law and desire.

Indian nyaya philosophy also accepts God’s law to be moral directive. God reveals
His mandates through saints and the common people can known them from the holy
scriptures.
 147

This opinion makes God unrestrained. God can make right-wrong and wrong-right.
This opinion is a contradiction of the real religious consciousness. God is, of course,
beyond ethics but it would be wrong to accept him to be with evil. As the author of
the Gita has correctly said, “God is, by nature, good and true Thus, God’s decrees
should not differ from moral norms. Secondly, the acts done to avoid punishment or
reap the rewards which result from the fulfillment of divine will are inspired by the
business mind. Acts done under the fear of hell or lure of heaven cannot be called
moral.

THE LAW OF INNER CONSCIENCE

Besides these external laws “some people" take the internal laws of the inner
conscience to be the standard of morality. According to this theory to obey the
dictates of the inner conscience is right and to go against it is manifestly wrong. The
inner self judges the goodness or evil body intuitively not from the viewpoint of some
aim. Morality is based on the intuition originated laws of the inner conscience, not on
knowledge, beauty or any other quality.

There are many difficulties in accepting this theory too. Conscience differs with
individuals and society in different atmospheres, sanskaras and social conventions.
They cannot be considered valid.

In the words of MACKENZIE, "the man who does not act conscientiously certainly
acts wrongly, he does not conform even to his own standard of rightness. But a man
may not act conscientiously and yet act wrongly on account of some imperfection in
his standard”.

Thus, on the basis of unphiiosophical intuitionism no definite, dependable and

universal moral standard can be found. On the other hand, philosophical intuitionism
lays down moral laws and stress their inevitability but it does not discuss the
fundamental moral principles. It does not consider any ultimate good. Thus, it cannot
render any guidance in a state of contradiction or exception. In the absence of moral
ideals the orders of the inner conscience become unprincipled.
 148

GENERAL CRITICISM OF STANDARD AS LAW

Roughly the following general arguments can be brought against standard as law

11 Emphasis On External Force

Standard as law establishes “must" instead of “ought”. In order to know the

moral “ought" it will be necessary to adopt a purposive viewpoint. Moral
laws are not based on any internal or external pressure. They are imposed by
the person upon himself.

21 Freedom of Self Disproved

Standard as law disproves the basic assumption of ethics, viz., freedom of the
self. If man is tied down by law then, for him, moral “ought" becomes
meaningless.

31 Rigorous
Standard as law is rigorous, because it leaves no scope for any exception.
Laws are acceptable under every condition. They are non-violable orders.

11 Co V) ’ERSE STA TEMENT

As a matter of fact the theory of standard as law in an opposite thing. Laws

themselves do not mean anything, being only means for obtaining some end.
Thus, the ultimate good of ethics is the supreme ideal, the end or objective of
these laws. In such a condition, those laws which take one in the direction of
the supreme ideal are right and those which deviate from the right course and
lead him astray are wrong.

5i Despotic Standard
According to this theory, the moral standard is despotic. It depends upon the
wishes of the social group, government and God. It has no indispensable
rational basis. But moral laws are based on reason and correspond to the
nature of the self.
 149

61 Based on Prudence
External laws are based on hope of reward and fear of punishment. But if the
thought of profit or loss is the motive behind actions then prudence replaces
the moral qualities and selfishness replaces morality. In this way, an action
can never be called moral. Morality is, in itself an end. It is not based on any
kind of thought pertaining to good or bad results.

STAGES IN MORAL EVOLUTION

Formalism is an indication of a primitive stage in the evolution of moral
consciousness. MUIRHEAD has enumerated three stages in the development of
moral consciousness.

First the conduct of the species and the individual is controlled by external laws. This
is an irrational stage of the human species. Following this, with the increase in the
power of the reason, laws of inner conscience takes the place of the external laws. In
this stage, man acts according to the internal laws, free of the external forces. Some
time later, when both these kinds of formalism appear inadequate, a unique morality
is established in which law is subordinated to an intrinsic end, an ultimate end. In the
same way, morality is different from moraiism. Las indicate "must". They are
founded in force and exercise of power. On the other hand, moral laws are not base
don any internal or external force. They gave the impression of “ought" rather than
“must".

NATURE OF MORAL LAW

Laws can be divided into three categories-
1) Moral
2) Political, and
3) Natural
Political laws are characterized by the use of force and are described in formalism.
Their infringement brings punishment. Their nature is to direct “must". Morality
based on them is legal morality. With them the law is an end in itself.

Natural laws are of the nature of “is". They are laws of the natural world. They are
factual, permanent and unchangeable. We can take the case of the laws of the solar
 150

system. While on the one hand, moral laws differ from the laws of the “must"
category, on the other hand they are almost the opposites of the laws of “is” variety.
Conversely, they fall under the category of “ought”. They are axiological, ends in
themselves and rational. They may also have exception according to the
circumstances. They emphasize motive, not results. These laws indicate duty. Laws
of God can be placed both in the “must" and “ought" categories. As far as they are
permanent and unchanging, they resemble natural laws. But if God is accepted in the
form of an-all-comprehending self, then, God’s decrees will be the orders of the
intellectual self and will then be limited to the category of ethical laws. In this case
self manifestation will be God-manifestation, following the directions of the self will
be equivalent to proceeding on lines laid down by God. In this way, the ultimate good
will be the attainment of supreme consciousness.

DISTINCTION BETWEEN LAW AND MORALS

There is a distinction between law and morals.

According to VINOGRADOFF, "law is clearly distinguishable from morality. The

object of law is the submission of the individual to the will of organized society while
the tendency of morality is to subject the individual to the dictates of his own
conscience".

According to POLLOK. "though much ground is common to both, the subject-matter

of law and ethics is not the same. The field of legal rules of conduct does not coincide
with that of moral rules and is not included in it and the purposes for which they exist
are different".

According to DUGUIT, "law has its basis in social conduct. Morals go on intrinsic
*

value of conduct. Hence it is vain to talk about law and morals. The legal criterion is
not an ethical criterion."

According to PATON, "morals or ethics is a study of the supreme good. Law lays
down what is convenient for that time and place; ethics concentrates on the individual
rather than society; law is concerned with the social relationship of man rather than
the individual excellence of their character; ethics considers motive all-important;
 151

law insists merely by conduct with certain standards and seldom worries for motive.
But it is too narrow to say that ethics deals only with the individual or that ethics
treats only of the interior and law only of the exterior, for ethics in judging acts must
consider the consequences that flow from them. Moreover, ethics duties of man
cannot be considered without considering his obligation to his fellows or his place in
society".

According to POUND, "law and morals have a common origin but they diverge in
their development".

According to BENTHAM, "in a word, law has just the same centre as morals but it
has by no means the same circumference".

According to KORKUNOV, "the distinction between morals and law can be

formulated very simply. Morality furnishes the criterion for the proper evaluation of
our interests; law marks out the limits within which they ought to be confined".

ARNDTS writes that there are four points of difference between law and morals.

1) In law man is considered as a person, that is because he has a free will; in

morals we have to do with determining the will towards the good;
2) Law considers man only in so far as he lives in community other others;
morals give a guide to lead him even if he were alone;
3) Law has to do with acts in so far as they operated externally; morals look to
the intention - the inner determination and direction of the will;
4) Law governs the will so far as it may be external coercion; morals seek a free
self - determination towards the good."

From the above it follows that whereas legal rules do require external conduct and are
indifferent to motive, intentions or other internal accomplishments of conduct, morals
do not require any specific external action but only a good will or proper intention or
motive. If a person does something forbidden by moral rules or fails to do what they
require, the fact that he did so unintentionally and inspite of every care is an excuse
from moral blame. A legal system or custom may have rules of strict liability under
 152

which those who have violated the rules unintentionally and without fault may be
liable for punishment.

RELATION BETWEEN LAW AND MORALS

In the preceding paragraph the points of distinction between law and moral have been
discussed, but due 10 these points of distinction between the two it should not be
gathered that they are opposed toe each other and there is no relationship between the
two. Really speaking, they are very closely related to each other. In considering the
relationship between law and morals much will depend on how one defines law.
Analytical, historical, philosophical and sociological jurists all have define 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 any place in law". But a definition which regards
all the rules and principles which govern or influence human conduct as law, allows
morals to play a very important role in the field of law. Here, within the limited scope
of this, it is not possible for us to enumerate the various definitions of law and
consider what place-morals have in them. Therefore, a general view of the
relationship between law and morals shall be presented.

A study of the relationships between law and morals can be made from three angles:-
1) Morals as the basis of law.
2) Morals as the test of "positive" law.
3) Morals as the end of law.

11 Morals as the basis of la w

As observed earlier, in the early stages of the society no distinction was made
<r
between law and morals. All the rules originated from the common source,
and the sanction behind them was of the same nature "mostly supernatural
fear". When state came into being, it picked up those rules which were
important from the society's point of view and the observance of which could
be secured by it. The state put its own sanction behind these rules and
enforced them. These rules were called "law". The rules which were meant
for some supreme good of the individual "in the metaphysical sense" and the
 153

state could not ensure their observance continued in their original condition.
These rules are known as morals. Thus law and morals have the common
origin but in the course of development they came to differ. Therefore, "it
could he said that law and moral have a common origin but diverge in their
development". As the law and morals have come from the common stock
many rules are common to both. For example, to kill a man or to seal are acts
against law and morals both. It is on this ground that, sometimes, law is said
to be "minimum ethics".

EXPLORERS CASE
Though law and morality are not the same, and many things may be immoral
which are not necessarily illegal, yet the absolute divorce of law from morality
would be a fatal consequence. The principles laid down in Queen V. Dudley
and Stephen’s "explorer's case" are worth mentioning in this connection. In
that case three seamen and a boy, the crew of an English Yacht, were cast
away in a storm on the high seas and were compelled to put into an open boat
belonging to the said yacht. They had no food and no water the boat and in
order to save themselves form certain death they put the boy to death and fed
on the boy's body, when they were picked up by a passing vessel. They were
tired for the killing of they boy and jury returned a special verdict. Then case
came before a bench of five judges of Queen's bench Division Coleridge C.J.
"the other four judges concurring" observed.

"To preserve one's life is generally speaking a duty, but it may be the plainest
and highest duty to sacrifice it. War is full of instances in which it is a man's
duty not to live, but to die. The duty in case of shipwreck, of a captain to his
crew, of the crew to the passengers, ofsoldiers to woman and children... these
duties impose on men the moral necessity, not of the preservation, but the
sacrifice of their lives for others, fi‘om which in no country, least of all it is to
he hoped in England, will men ever shrink, as inded, they have not shrunk. It
is not correct, therefore, to say that there is any absolute or unqualified
necessity for preserving one's life. It is not needful to point out the lawful
danger ofadmitting the principle which ahs been contendedfor. Who is to be
the judge ofthis sort ofnecessity?" By what measure is the comparative value
 154

of lives to be measured? It is to be strength; or intellect, or what? It is plain

that the principle leaves to him who set to profit by it to determine the
necessity which will justify him in deliberately taking another's life to save his
own. In this case the weakest, the youngest, the most unresisting, was chosen.
Was is more necessary to kill him than one of the grown-up men? The answer
must be "no". So spoke (he Fiend, and with necessity, the tyrant’s plea excused
his devilish deeds".

"It is not suggested that in this particular case the deals were devilish", but it
is quite plain that such a principle, once admitted might be made the legal
cloak for unbridled passion and atrocious crime. There is no safe path for
judges to tread but to ascertain the law to the best of their ability and to declare
it according to their judgement and if in any case the law appear to be too
severe on individuals, to leave it to the sovereign to exercise that prerogative
of mercy which the constitution has entrusted to the hands fitted to dispense it.

"It must not be supposed that in refusing to admit temptation to be an excuse

for crime it is Jorgotten how terrible the temptation was; how lawful the
suffering; how hard in such trials to keep the judgement straight and the
conduct pure. We are often compelled to set up standards we cannot search
ourselves, and to lay down rides which we could not ourselves satisfy. But a
man has no right to declare temptation to be an excuse, though we might
himself have yielded to it, or allow compassion for the criminal to change or
weaken in any manner the legal definition of crime".

GROVE, J. while concurring added; "if the two accused men were justified in
kilting Parker, then if not rescued in time, two of the three survivors would be
*

justified in killing the third, and, of the two who remained, the stronger would
be justified in killing the weaker, so that three men might be justifiably killed
to give the fourth a chance ofsurviving".
 Thus the principle is that no man has a right to take anothers life to save his
own1.

However, it does not mean that morals are the basis of all the legal rules.
There are a number of legal rules which are not based upon morals and some
of them are even opposed to morals. Morals will not hold a man vicariously
liable - one liable for the act of another - where the person made liable is in no
way blameable. In the same way, in cases where both the parties are
blameless and they have suffered by the fraud of a third, law may impose the
loss upon the party who is capable of bearing it but such a course will not be
approved by morals.

il Morals as the Test of La w

It lias been contended by a number of jurists, since very early times, that law
must conform to morals. This view was supported by the Greeks and Romans.
In Roman law, to some extent, was made to conform to "natural law" which
was based on certain moral principles and as a result "jus civili" was
transformed into "jus gentium". Most of the ancient jurists expressed their
views in a spirit of compromise and attached sanctity to legal rules and
institutions. They said that law, even if it is not in conformity with morals is
valid and binding. During the Dark Ages Christian Father's preached
forcefully that law must conform to Christian morals and said that any law
against it is invalid. In the 17th and the 18th centuries, when the "natural law"
theory "which was based on certain morals" was at its highest, it was
contended that law "positive law" must conform to "natural law". They said
that any law which does not conform to "natural law" is to be disobeyed and
the government which makes such law should be over thrown. It was this
theory which inspired the French revolution. In modern times, such views that
law must conform to morals and if it is no to conformity with morals it is not
valid and binding are no longer heard. However, in practice to a great extent
law conforms to morals. Generally, law cannot depart far from the morals due
to many reasons. The law does not enforce itself. There are a number of

1 See also Umar Din. 67 I.C. 340 and Commonwealth V. Holmes, cited in Wharton's Homicide, P.237
 156

factors which secure the obedience of law. The conformity of law with morals
is a very important factor. There is always a very close relation between the
law and life of a community and in life of the community morals have got an
important place. PATON rightly observed that "if the law lays behindpopular
standard it falls into disrepute, ij the legal's standards are too high, there are
great difficulties of enforcement1

11 Morals As The End Of La i v

Morals have often been considered to be the end of law. A number of eminent
jurists have defined law in terms of, justice. They say that the aim of "law" is
to secure justice. Justice in its popular sense is very much based upon morals.
In most of the languages of the world the words used for law convey an idea
of justice and morals also. According to analytical jurists, any study of the
ends of law fails beyond the domain of jurisprudence. But sociological
approach considers this study as very important. It says that law has always a
purpose; it is a means to an end, and this end is the welfare of the society,
according to this utilitarian point of view, the immediate end of law is to
secure social interests, that is, to secure harmony of claims or demands. It
means that the conflicting interests "in the society" should be weighed and
evaluated and the interests which can bring greater benefit with the least
sacrifice should be recognized and protected. Thus this all becomes a question
of choice. In making this choice and in weighing or evaluating interest,
whether in legislation or judicial decision, or juristic writing, whether we do it
by law making or in the application of law, we must turn to ethics for
principles. Morals is an evaluation of interests; law is or at least seeks to be a
delimitation in accordance therewith2.

KORKUNOV'S VIEW
KORKUNOV also says that the "idea of value is, therefore, the basal
conception ethics. No other terms, such as duty, law, or rights is final for
thought; each logically demands the idea of value as the foundation upon
which it finally rests. One may ask, when facing some apparent claim or

1 PATON : Textbook of Jurisprudence.

2 ROSCOE POUND : Law and Morals
 157

morality, 'why is this my duty, I must obey this law, or why regard this course
of action as right? The answer to any of these questions consists in showing
that the requirements of duty, law and right tend in each case to promote
human welfare to yield what men do actually find to be of value1.

Many of the modern defmtions of !aw says that the evaluation of interests is a
very important test of law. This can be done properly in the context of
socially recognized values which in their turn are closely related to morals.
Thus, ultimately morals become the end of law. This end has been expressed
in the constitutions of many countries. If we look at the preamble of our own
constitution, we shall find that the ends which it endeavours to achieve are the
morals, of course, they are the morals of the modern age

MORALS AS PART OF LAW

It is contended by some writers that even if law and morals are
distinguishable, morality is in some way an integral part of law or of legal
development. Morality is "secrted in the interstices" of the legal system and
to that extent is inseparable from it. This view point has been put forward in
various ways. It is said that law in action is not a mere system of rules but
involve the use of certain principles, such as that of equitable and the good.
By the skilled application of these principles, such as that of equitable and the
good. By the skilled application of these principles to legal rules, the judicial
process distils a moral content out of the legal order, though it is admitted that
this does not permit the rules themselves to be rejected on the general ground
of their morality. Another approach confers upon the legal process an inherent
power to reject immoral rules as essentially non-legal. Even the positivist does
not deny that many factors, including morality, may and do concur in the
t

development of a legal rule and where there is a gap or a possible choice

within the legal system, moral or other extra legal pressures may cause that
gap to be filled or the choice to be determined in one way rather than another.
What the positivists insist is that once the rule is laid down or determined, it

KARKUNOV : General Theory of Law

 158

does not cease to be law because it may be said or shown to be in conflict with
morality.

LEGAL ENFORCEMENT OF MORALS

A good deal of controversy has arisen in recent years as to whether the fact
that conduct is, by common standards, regarded as immoral, in itself justifies
making that conduct punishable by law. The view of Lord DEVLIN is that
there is public morality which provides the cement of any human society and
law, especially criminal law, must regard it as its primary function maintain
this public morality. Whether in fact in any particular case the law should be
brought into play by specific criminal sanctions, must depend upon the state of
public feeling. Conduct which arouses a widespread feeling of reprobation, a
mixture of intoleration, indignation and disgust, deserves to be suppressed by
legal coercion in the interests of the integrity of society. The conclusion of
Lord DEVLIN is that if vice is not suppressed, society could crumble. To
quote him: "the suppression of vice is as much the law's business as the
suppression ofsubversive activities".

Prof. HART also accepts the need for law to enforce some morality. The real
area of dispute is where the line should be drawn.

J.S.MILL drew it at harm to others. According to HART, some shared

morality is essential to society. If any society is to survive, if any legal system
is to function, then there must be rules prohibiting, for example, murder. The
rules, essential for a particular society may also be enforced. "For any society
there is to be found .... a central core of rules or principles which constitutes
its pervasive and distinctive style of life.

CONCLUSION
Generally, legal rules are composite and are derived from heterogeneous sources. In
India, if we examine all the legal precepts, we shall find that some of them have come
from personal laws and local customs, a good number of them are based on foreign
rules and principles "mainly English", some are based on some logic or political
ideology and so on.
 159

Secondly, "public opinion" which greatly influences law is made up of a number of

things - political ideas, economic theory, ethical philosophy etc. These directly and
indirectly influence law. Therefore, when so many elements work in shaping the
legal precepts, the matter cannot be put in such a simple was as the "relation between
law and morals", because a number of factors join hands in influencing law and
morals is only one of them. However, some observations can be made about the
relation between law and morals.

INFLUENCE ON MORALS OF LAW

Law and moral act and react upon and mould each other. In the name of justice,
equity, good faith and conscience, morals have infiltrated into the fabric of law.
Moral considerations play an important part whilejnaking law, interpreting law and
exercising judicial discretion. Morals act as a restraint upon the power of the
legislature. No legislature will dare to make a law which is opposed to the moral of
society. All human conduct and social relations cannot be regulated and governed by
law alone and very many relations are left to be regulated by morals and law does not
interfere with them. Morals perfect the law. PATON writes: "in marriage, so long as
love persists, there is little need of law to rule the relations of the husband and wife -
but the solicitor comes in through the door as love flies out ofthe window1.

The sociological approach is very much concerned with the ends to be pursued by
law. The result is that morals have become a very important subject of study for good
law-making. Morals also exercise a great influence on international law. The
brutalities committed during the world wars have forced the people to turn back to
morals and efforts are being made to establish standards and values which must be
followed by nations. If law is to remain closer to the life of the people, it cannot
ignore morals.

About the influence of morals on law: HART says:

PATON : A Textbook of Jurisprudence

 160

HART’S VIEW
"The law of every modern state shows at a thousand points the influence of both the
accepted social morality and wider moral ideals. These influences enter into law
either abruptly and avowedly through legislation, or silently and piecemeal through
he judicial process. In some systems, as in the United States, the ultimate criteria of
legal validity explicitly incorporate principles ofjustice or substantive moral values;
in other systems as in England where there are no formal restrictions on the
competency of the supreme legislature, its legislation may yet no less scrupulously
conform to justice or morality. The further ways in which law mirrors morality which
are myraid, and still insufficiently studied: statutes may be a mere legal shell and
demand by their express terms to be filled out with the aid of moral principles; the
range of enforceable contracts may be limited by reference to conceptions ofmorality
and fairness; liability for both civil and criminal wrongs may be adjusted to
prevailing views of moral responsibility. No positivist could deny that these are facts
or that the stability of legal systems depends in part upon such types of
correspondence with morals. If this is what is meant by the necessary connection of
law and morals, its existence should be conceded1.

GROWING IMPORTANCE OF MORALS

Now, sociological approach has got its impact upon the modern age. This approach is
more concerned with the ends that law has to pursue. Thus, recognized values, or in
other words, morals "of course the morals of the modern age" have become a very
important subject of study for good law' making. On international law also morals are
exercising a great influence. The brutalities and inhuman acts in world wars made the
people to turn back to morals and efforts are being made to establish standards and
values which the nations must follow. Perhaps there is no other so forceful ground to
justify the Nuremberg trials as morals. If the law is to remain closer to the life of the
people and effective, it must not ignore morals.

HART H.L.A.: The Concept of"Law (1970), PP199-200

 160-a

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