ALLIANCE SCHOOL OF LAW

PROJECT ON

STUDY OF CONCEPTUAL GAP AND ANALYSIS BETWEEN

LAW AND MORALITY

SUBMITTED TO: AVINASH BHAGWAN AWAGHADE

BY:

STUDENT NAME:- R HARSHAD

REG No:- 17040142060

Course:- BBA.LLB hons.

 ACKNOWLEDGMENT

I would like to express my special thanks of gratitude to my Prof. Avinash Bhagwan

Awaghade who gave me the golden opportunity to do this wonderful project on the topic
study of conceptual gap and analysis between law and morality , which also helped me in
doing a lot of Research and i came to know about so many new things I am really thankful to
them.
Secondly i would also like to thank my parents and friends who helped me a lot in finalizing
this project within the limited time frame.
 INDEX

INTRODUCTION

THEORY OF RELATIONSHIP OF LAW AND MORALITY

CONCEPT OF LAW ACCORDING TO HART

RELATION BETWEEN LAW AND MORALITY

CONCLUSION

BIBLIOGRAPHY
LAW AND MORALITY (INTRODUCTION)

In general view morality is the quality of being in accord with standards of right or wrong
conduct. Morality, speaks of a system of behavior in regards to standards of right or wrong.
The word carries the concepts of:
(1) moral standards, with regard to behavior;
(2) moral responsibility, referring to our conscience; and
(3) a moral identity, or one who is capable of right or wrong action.

Morality has become a complicated issue in the multi-cultural world we live in today.
Timeless wisdom explains that there cannot be a complete law unless there lays the effect and
inclusion of morality. My Project explores what is Moore’s concept of morality and how he
explains its affects on our behavior, our conscience, our society, and our ultimate destiny.
Law and morality are too vague to understand. It must be added here that the notions of law
and justice can't be captured and presented before us within a few sentences. These notions
are too vast that even words are not sufficient to define them. Many jurists from the ancient
Greek period to the modern and even the post-modern era have attempted numerously to
define these concepts, but have failed. One of the reasons may be that the roots of these
concepts lie somewhere within the human psyche, which is extremely random and versatile.
Well it is required to describe the tenets of the two main schools of law.

LEGAL POSITIVISM

The start of the nineteenth century may be regarded as the beginning of the positivist
movement. The term positivism has many meanings, which are tabulated by Professor H.L.A.
Hart as follows:
1. Laws are commands. This meaning is associated with the two founders of British
Positivism, Bentham and his disciple John Austin,

2. The analysis of legal concepts is:

* worth pursuing
* distinct from sociological and historical inquiries,
* distinct from critical evaluation,
3. Decisions can be deduced logically from the predetermined rules without recourse to social
aims, policy and morality,

4. Moral judgments cannot be established or defended by rational argument, evidence or

proof,

5. The law as it is actually laid down, positum, has to be kept separate from the law that ought
to be.
The positive law school has its main pillars as, Jermy Bentham, John Austin, Prof. H.L.A.
Hart, Kelson. Actually positivism has grown out of the ashes of renascence in Europe. It is
hence a liberal thought or a liberal ideology whose main aim is to bring positive reforms in
the society through the instrument of state and not through the clergy. What positivism
represents is the intellectual reaction against naturalism and a love of order and precision.

After having a brief idea of legal positivism, we should move to the Natural Law school.
Natural Law School
The term "natural law", like positivism, has been variously applied by different people at
different times.
1. Ideas which guide legal development and administration.
2. A basic moral quality in law which prevents a total separation of the "is" from the "ought".
3. The method of discovering perfect law.
4. The content of perfect law deducible by reason.
5. The conditions sine quibus non for the existence of law.

The question of how law is related to morality is best approached through judicial obligation
that obligates judges in their role as judges, and then to further consider how ought judges to
use morality in their decision of disputed law cases? How should morality properly enter into
judicial decisions.

Idea to understand the judicial reasoning is by considering the “obvious law”. This can be
understood with the help of certain examples, which he cites. When statutes award custody of
minor children to a parent it is most likely in the best interest of the child, award citizenship
only to those applicants who possess good moral character, deport those who are convicted of
crimes of moral turpitude. This shows that judges in legal systems with obvious law like ours
have to make some kind of moral decisions in order to apply such laws to the cases before
them.

With the force of the state behind them, they coerce people into giving up their money, their
liberty and their lives. Such coercion requires justification, which is of course the (obvious)
law, which lays down certain doctrines of legislative supremacy and the ban on common law
crimes. Some political ideals such as democracy, the separation of powers, and the rule of
law make those doctrines a source of judicial obligation.

Natural law school dominated till the nineteenth century, beginning from the ancient Greek
period. Natural law school discussed what law is etc., but never discussed law as an empirical
formula, and never made strict separation between what law is and what law ought to be.
Natural law thinkers while talking of law talk about law made by man's mind consciously, as
opposed to law made as a result of morality lacking conscious element. Natural law thinking
is one form or other is pervasive and is encountered in various contexts. Values, for instance,
as pointed out, play an indispensable part in the development and day to day administration
of law. In a different sphere natural law theory has tried to meet the paramount needs of
successive ages through history, and an account has been given of the ways in which it
supported power or freedom from power according to the social need of the time. Further
natural law school offers a indirect help with two contemporary problems, namely, the abuse
of power and the abuse of liberty.

Positivism on the other hand, by seeking to insulate legal theory from such considerations
refuses to give battle where battle is needed perhaps wisely, perhaps to its own discredit,
depending on the point of view. The Natural law thinkers have always considered the
principles of morality as higher law and they look at man made law contempt and ridicule.
Law and morality have always been at loggerheads with each other. The positivists led by
Bentham and Austin deliberately keep justice and morality out of the purview of legal
system. Their formalistic attitude is concerned with law as it is and not law as it ought to be.
They emphasize law from the point of source and implementation. So, the natural law system
depends upon the standards and yardsticks of morality to formulate any law, whereas the
positivist system of law depends upon the conscious and deliberate attempt of law making.
THEORY OF RELATIONSHIP BETWEEN LAW AND MORALITY

Ever since the revival of the scientific study of jurisprudence the connection of law and
morality has much discussed, but the question is not yet, and perhaps never will be settled.
Every variety of opinion has been entertained, from the extreme doctrine held by Austin that
for the purpose of the jurist, law is absolutely independent of morality, almost to the opposite
positions, held by every Oriental cadi, that morality and law are one. The question is an
important one, and upon the answer which is given to it depends upon the answer which is
consequences. The problem is an intensely practical one.

The popular conception of the connection between law and morality is that in some way the
law exists to promote morality, to preserve those conditions which make the moral life
possible, and than to enable men to lead sober and industrious lives. The average man regards
law as justice systematized, and justice itself as a somewhat chaotic mass of moral principles.
On this view, the positive law is conceived of as a code of rules, corresponding to the code of
moral laws, deriving its authority from the obligatory character of those moral laws, and
being just or unjust according as it agrees with, or differs from them. This, like all other
popular conceptions, is inadequate for scientific purposes, and the jurist, so for at least as he
is also a scientist, is compelled to abandon it. For it is contradicted by the fact’s. positive laws
do not rest upon moral laws and common notions of justice furnish no court of appeal from
the decrees of the State. The average man confounds law and morality, and identifies the
rules of law with the principles of abstract justice.

THE CONCEPT OF LAW ACCORDING TO HART

Hart's most famous work is The Concept of Law, first published in 1961, and with a second
edition (including a new postscript) published posthumously in 1994. The book emerged
from a set of lectures that Hart began to deliver in 1952, and it is presaged by his Holmes
lecture, Positivism and the Separation of Law and Morals, delivered at Harvard Law
School. The Concept of Law developed a sophisticated view of legal positivism. Among the
many ideas developed in this book are:

1. A critique of John Austin's theory that law is the command of the sovereign backed by the
threat of punishment.
2. A distinction between primary and secondary legal rules, such that a primary rule governs
conduct, such as criminal law, and secondary rules govern the procedural methods by
which primary rules are enforced, prosecuted and so on. Hart specifically enumerates
three secondary rules; they are:
2.1. The Rule of Recognition, the rule by which any member of society may check to
discover what the primary rules of the society are. In a simple society, Hart states, the
recognition rule might only be what is written in a sacred book or what is said by a
ruler. Hart claimed the concept of rule of recognition as an evolution from Hans
Kelsen's "Grundnorm", or "basic norm".
2.2. The Rule of Change, the rule by which existing primary rules might be created,
altered or deleted.
2.3. The Rule of Adjudication, the rule by which the society might determine when a rule
has been violated and prescribe a remedy.
3. A distinction between the internal and external points of view of law and rules, close to
(and influenced by) Max Weber's distinction between legal and sociological perspectives
in description of law.
4. A concept of "open-textured" terms in law, along the lines of Wittgenstein and Waisman,
and "defeasible" terms (later famously disavowed): both are ideas popular in Artificial
intelligence and law
5. A late reply (published as a postscript to the second edition) to Ronald Dworkin, a rights-
oriented legal philosopher (and Hart's successor at Oxford) who criticised Hart's version
of legal positivism in Taking Rights Seriously (1977), A Matter of Principle (1985)
and Law's Empire (1986).

RELATIONSHIP BETWEEN LAW AND MORALITY

1. Law is an enactment made by the state. It is backed by physical coercion. Its breach is
punishable by the courts. It represents the will of the state and realizes its purpose.
2. Laws reflect the political, social and economic relationships in the society. It determines
rights and duties of the citizens towards one another and towards the state.

3. It is through law that the government fulfils its promises to the people. It reflects the
sociological need of society.

4. Law and morality are intimately related to each other. Laws are generally based on the
moral principles of society. Both regulate the conduct of the individual in society.

5. They influence each other to a great extent. Laws, to be effective, must represent the
moral ideas of the people. But good laws sometimes serve to rouse the moral conscience
of the people and create and maintain such conditions as may encourage the growth of
morality.

6. Laws regarding prohibition and spread of primary education are examples of this
nature.Morality cannot, as a matter of fact, be divorced from politics. The ultimate end of
a state is the promotion of general welfare and moral perfection of man.

7. It is the duty of the state to formulate such laws as will elevate the moral standard of the
people. The laws of a state thus conform to the prevailing standard of morality. Earlier
writers on Political Science never made any distinction between law and morality.

8. Plato's Republic is as good a treatise on politics as on ethics. In ancient India, the term
Dharma connoted both law and morality. Law, it is pointed out, is not merely the
command of the sovereign, it represents the idea of right or wrong based on the prevalent
morality of the people.

Moreover, obedience to law depends upon the active support of the moral sentiments of the
people. Laws which are not supported by the moral conscience of the people are liable to
become dead letters.

For example laws regarding Prohibition in India have not succeeded on account of the fact
that full moral conscience of the people has not been aroused in favor of such laws.
As Green put it, "In attempting to enforce an unpopular law, a government may be doing
more harm than good by creating and spreading the habit of disobedience to law. The total
cost of such an attempt may well be greater than the social gain."
Although law and morality arc interdependent yet they differ from each other in their content,
definiteness and sanction.

SOME POINTS OF DISTINCTION BETWEEN LAW AND MORALITY

MAY BE BROUGHT OUT AS FOLLOWS
LAW

‘the body of rules, whether proceeding from formal enactment or from custom, which a
particular state or community recognizes as binding on its members or subjects.’

That this should be regarded as the definition of law for the English language is evidence of
the influence legal positivism has upon the philosophy of law in our culture. The central
themes of positivism are the contentions: firstly, that the existence of law rests upon
identifiable social facts and, secondly, that it is necessary to maintain a conceptual distinction
between law and morality. In this essay I will examine the positivist assertion that law is
identifiable independently of morality, with a particular focus on the theory of H.L.A Hart.

1. Law regulates and controls the external human conduct. It is not concerned with inner
motives. A person may be having an evil intention in his or her mind but law does not care
for it.

Law will move into action only when this evil intention is translated into action and some
harm is actually done to another person.

2. Law is universal in a particular society. All the individuals are equally subjected to it. It
does not change from man to man.

3. Political laws are precise and definite as there is a regular organ in every state for the
formulation of laws.
4. Law is framed and enforced by a determinate political authority. It enjoys the sanction of
the state. Disobedience of law is generally followed by physical punishment.

The fear of punishment acts as a deterrent to the breach of political law.

5. Law falls within the purview of a subject known as Jurisprudence.

MORALITY

1. Morality regulates and controls both the inner motives and the external actions. It is
concerned with the whole life of man.

The province of law is thus limited as compared with that of morality because law is simply
concerned with external actions and docs not take into its fold the inner motives.

Morality condemns a person if he or she has some evil intentions but laws are not applicable
unless these intentions are manifested externally.

2. Morality is variable. It changes from man to man and from age to age. Every man has his
own moral principles.

3. Moral laws lack precision and definiteness as there is no authority to make and enforce
them.

4. Morality is neither framed nor enforced by any political authority. It does not enjoy the
support of the state. Breach of moral principles is not accompanied by any physical
punishment.

The only check against the breach of morality is social condemnation or individual
conscience. 'Moral actions are a matter of choice of inner conscience of the individual, laws
are a matter of compulsion'.

5. Morality is studied under a separate branch of knowledge known as Ethics.

CONCLUSION

Generally, legal rules are composite and are derived from heterogeneous source. In India, if
we examine all the legal perspective, we shall find that some of them have come from
personal laws and local custom, a good number of them are based on foreign rules and
principles (mainly English), some are based on the logic or political ideology and so on.
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 way 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 relationship between law and morals.
 BIBLIOGRAPHY

 www.legalservicesindia.com

 www.latestlaws.com

 http://en.m.wikipedia.org

 http://legodesk.com
THANK YOU