LEGAL METHODS AND LEGAL SYSTEMS

 INTRODUCTION: Defining Law and Morality

Law and morality are both too uncertain terms. The reason for not finding any
definite meaning of these terms can be that both these terms are dynamic in
nature, with the time, situation and place meaning and value of these terms keep
changing.

LAW: According to Salmond law, “as the body of principles recognized and
applied by the state for the administration of justice”.

Kelson defined law as “law is characterised no as an end but as a specified

means, as an apparatus of compulsion to which, as such there adheres no
political or ethical value, law apparatus whose value derives rather from some
end which transcends the law’’ All the definitions have common elements in
them like a law-making authority, set of rule and regulations, an instrument of
justice, protection of rights of the citizen, a technique of social organization

MOARLITY: Morality is a concept of right and wrong. And morality has a

wide sphere as different human beings can have different moral principles on
which they judge a conduct. Morality can be based on several things your
religion, culture, society, community, and your family values. Morality does not
enjoy the independent status as the law does. Morality is something that an
individual’s personal notion but in accordance with the social group he is part
of. Man is a social animal and cannot live in isolation, this can be a reason for
the foundation of moral principles because if you are living in a social group
your conduct should be accepted, so this is situation where morality comes in
picture, person living in isolation is not required to check his conduct on
morality parameters.

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  RELATIONSHIP BETWEEN LAW AND MORALITY

While law is a subject of study in Political Science and morality is a subject of

study in ethics, the two have a close relationship. Law and morality are
mutually reinforcing. People are taught the code of conduct by ethics. It
demonstrates the difference between fact and deception. It makes us aware of
our acts' wrongness and rightness. Ethics allows us to think morally and
improves our moral standing. It aids in the creation of our moral standards. The
same goal is pursued by state-enacted legislation. The overarching goal of the
state is to promote people's well-being. Individuals can also benefit from
political science in order to become better people. An individual can only
become an ideal citizen if he adheres to the morality code of conduct. As a
result, there is a strong connection between law and morality. And when a state
functions under ideal moral rules can it be called an ideal state. The foundation
of ideal laws is morality. It will aid the emergency of an ideal state if the state
works under ideal laws based on morality. Generally, laws are the image of
morality. In most democracies, there is no such rule as opposed to morality.
Therefore, the sovereign law-making authority pays close attention to the code
of law-morality intimacy, which states that "the line between the illegal and
immoral is blurry." Both public sentiment and attitudes are influenced by the
state and legislation; law, in turn, represents public opinion and therefore serves
as a barometer of moral change. According to sociological jurisprudence, the
law must evolve to meet the needs of society. Many states have developed new
legal principles based on that definition, some of which are linked to morality
and others which are not. Law, on the other hand, nurtures culture and society
nurtures law in modern society. As a result, morality has some bearing on the
law.

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  H.L.A HART’S VIEW ON LAW AND MORALITY
Prof HLA Hart was a legal positivist and a critical moral philosopher. As a legal
positivist, he states that it is not necessary that laws must necessarily satisfy
certain demands of morality. While acknowledging the close relationship that
exists between law and morality, he does not believe them to be inter-dependant
on each other. He states that the existence of law cannot be judged by its merits
or demerits. A law happens to exist, irrespective of our likes or dislikes.
Whether the law confirms to a set of minimum moral standards is not a pre-
requisite for existence of a legal system. It is not essential that a legal system
must exhibit some conformity with morality. Unlike the other legal positivists,
Hart does not deny that the development of law has been profoundly influenced
by morality. Hart acknowledges that law and morals are bound to intersect at
some point. Therefore, it becomes necessary to distinguish between what law is
and what law ought to be. According to Hart, legal interpreters should display
the truthfulness or veracity about law, by concentrating on what it says rather
than focusing on the aspect on what one wishes it to be said. Hart acknowledges
the problem that might occur due to lack of precision in the words used in
language of a statute, which he refers to as the core of the law. Not all cases
might exactly fall within the core of the law. Prof Hart calls these as the
problems of the penumbra. It then becomes necessary that the meaning of the
words in a statute is decided first while applying legal rules to the facts of the
case. Hart believes that the problems of the penumbra can be easily solved by
way of judicial interpretation. In solving the problems of the penumbra, Hart
talks about the necessary intersection between law and morals.

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  L. L. FULLER’S VIEW ON LAW AND MORALITY

Professor Fuller defines law as a particular way of achieving social order by

guiding human behaviour according to rules. According to Fuller, our legal
procedures are built out of norms of justice, which have a moral aspect. He
believes that for a law to be called a law in true sense, it must pass a moral
functional test. If a rule or a set of rules fails to conform to this function, it does
not count as law. While explaining the concept of morality, Fuller categorizes
the term morality into two different set of components. One set comprises of
“morality of aspiration” and “morality of duty”.

Fuller prescribes eight standards and says that for a principle to be acceptable as
law, it must be measured in terms of these standards.

 Sufficient generality
 Public promulgation
 Prospectivity
 At least minimally clear and intelligible
 Law should be free from contradictory mandates.
 Possibility of implementation and obedience
 Legal stability
 Compliance with legal reality
 DEBATE OF HART AND FULLER ON LAW AND
MORALITY

Hart argues that law does not have to point beyond itself in order to justify its
independence and autonomous existence. Natural law theorists say that law is
based on morality. Hart supports the separation of law and morals. There are 3
critiques to positivism which Hart addressed: law as a command, the problem
of penumbra and morally bad laws. The first critique is not relevant for this
debate, however, the second and third are. The problem of penumbra refers to

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the attempt to determine meaning, where the law is ambiguous. What has been
argued by Fuller here is that in such situations, judges decide what is from what
ought to be. Thus, the argument of Hart that the content of law i.e., what law
ought to be is separate from what law is becomes contradictory.

To this Hart replied that the understanding that ‘what ought to be’ is not
understood from a moral sense but from a legal framework. The situations of
ambiguity are resolved not by referring outside the legal system but from what
exists in the system itself. Positivists say the legal system is self-standing. When
we decide what ought to be, we decide it from within the Legal System. There
is no appeal beyond the Legal System. The doctrine of fidelity to the law that
one wants to make the law consistent; is something that comes out of the Legal
System. Thus, the very notion of fidelity is beyond the law. It is this that makes
positivists say that the Legal System has fidelity. This itself is the content of
morality in positivism. Thus, interpretation itself comes from within the law.
Coming to the third criticism, relating to morally bad. Fuller argues that you
need legal reasoning behind a law to condemn laws that lead to violations and
genocides. To overcome this argument, Hart says that he follows a minimum
content theory of natural law. This means that he will allow a certain influence
of morality in law. But this influence is only limited to the extent of what is
required to maintain consistency within the law. With regards to understanding
the debate on morally bad law, we refer to Nazi Germany laws. Here the
question was whether the laws made at that time were valid and whether people
obeying them should be punished. Positivists would say that though the law was
violative of certain rights, it was still the law. Thus, individuals should not be
punished for following laws. Natural law theorists would say that such law
violated some higher principles thus itself cannot be said to be a law.

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  ESTIMATION:

Certainly, there are values attached to the law, however, there should
be minimalistic involvement of morality in law. Law needs to be
justifiable to ensure that people follow it. In the end, if people do not
follow the law, then the system breaks. This justification has its
setting in morality. There must not be any kind of a religious, caste-
based or any other discriminatory interpretations done while
implementing laws or making them. As explained by Hart, there must
be minimum inclusion of morality to ensure consistency within the
system. This morality of laws must follow the constitution and must
be harmonious with other laws. However, when it comes to
interpretation, the stance of Hart relating to judges operating within
the legal system and using other laws to interpret what interpretation
could be intended is convincing as this would prevent the judges from
legislating. At the end the main question that would be arising is if the
law was upheld in accordance with the constitution? Indulgence of
morality or its norms would surely jeopardize the implementation and
justification of the laws made by the sovereign or as it Is in the
constitution.

Resources:

 Studies in jurisprudence and Legal theory- Dr. N.V. Paranjape

 Centre for American studies
 Stanford encyclopaedia of Philosophy
 Vidya-Mitra, MHRD Govt. of India

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