Law and Morality

Nature of Legal Rules

Nature of Moral Rules

Relations and Distinctions between Legal and Moral Rules

Law and Moral Dilemma

Legal rules derive their legitimacy and acceptance because of their instrumental role for attaining
a satisfactory common life.
Human behavior is influenced by personal values, internalized norms of conduct and exogenous
restrictions such as legal sanctions.
Three distinct ways in which law can influence behavior: deterrence, expression, and
internalization. And in order to effectively manipulate behavior, laws need to influence shared
values and norms.
Law commands are counterbalanced by expressions of disapproval. Overtime consensus may be
formed through the balancing of personal convictions against public purposes. An example in
this category of can be found in Hart’s analysis of homosexuality and human sexual
relationships, repressive laws generate moral outrage, and trigger the support of actions that are
perceived as essential to the expression and free development of one’s own personality.
According to Cooter (1998), there are different ways in which the expression of legal rules can
induce behavioral change. First, law can exert an external influence upon citizens by creating
legal sanctions that impose costs; the law may modify the observed patterns of behavior while
leaving individual preferences undisturbed. In turn, law may prompt citizens to adopt social
norms without changing their preferences, or "tastes." (strength of individual commitment to the
norm ) Second, citizens may internalize norms through changing their own tastes.
When lawmaking processes generate rules that do not reflect the level of social undesirability of
the conduct being sanctioned. That is such discrepancy occurs, that individuals may face the
command of rules that conflict with their sense of justice or fairness. The implicit price imposed
by the legal rule may differ from the perceived fair rule in two different ways. The law may
punish a conduct that is perceived as harmless or socially desirable, or it may fail to punish
harmful and undesirable behavior. Or in other situations the legal sanction may be viewed as too
harsh or too lenient relative to the preexisting social norm. When the legal sanction falls short of
the perceived fair sanction, individuals may be inclined to “add” social sanctions (under the form
of disapprobation, etc.) to the behavior. When the legal sanction exceeds the perceived fair
sanction, individuals may be inclined to “subtract” social sanctions (under the form of tolerance

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of infringers, protest, or civil disobedience, etc.) to the behavior. In these situations, social norms
may fill the gap between the content of legal rules and the underlying social opinion.
As a matter of common sense, the law's moral credibility is not needed to tell a person that
murder, rape, or robbery is wrong. Yet, the use of law is not limited to this. Even though in
general it is morality that drives law, in some situations law is utilized as an instrument of moral
suasion. To accomplish this task, the law cannot deviate too far from the community’s current
perceptions of justice. The avoidance of a conflict between law and morality is important,
inasmuch as “some citizens regard lawmakers as moral authorities, or citizens think that law as
such deserves respect. For these citizens, obeying law is a requirement of morality … Instead of
law aligning with morality, lawmakers can assume that some people will align their morality
with new laws"
Under each of these views, the alignment of law to existing morality is critical for the
preservation of legitimacy and the ability of law to effectively shape conduct. As laws begin to
depart from shared moral values, the influence of law on social norms becomes indeterminate.
Laws that depart only slightly from the current mode may occasion a gradual adaptation of the
opinion to the new statute. For example, the criminal law’s influence as a moral authority has
effect primarily at the borderline of criminal activity, where there may be some ambiguity as to
whether the conduct really is wrong. Here the law drives the evolution of norms in the same
direction of the law.
Other case ostensible opposition in the form of civil disobedience, normally people justify the
disobedience on the ground of justice, Constitutionality, and their own naturals rights but
sometimes justify their disobedience through private and subjective beliefs (religious
faith/commitments and so forth)
Countervailing effect of “civil disobedience” (where individuals ostensibly violate a command of
the law, justifying such departure on the grounds of individual freedom or unfairness of the law)
on law or legal affairs.

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Legal Rules

Philosophical Content of Legal Rules are determined by the particular School of thought
dominant in the particular time.

Since the very question at the core, ‘what law is’ does not lead to a perfect answer, trying to
discern particular nature of legal rules becomes difficult.

Anyways, features of legal rules distilled from various schools of thoughts can be stated as,
but definitely not limited to;

 Formal source of social control, change and development

 Emanates from predictable and authoritative source, generally constitution
 Anticipates Legal system and various institutions, hence enforcement, interpreting
institutions, like police, courts…

Morality

Barely universal or coherent notion. Some may regard something moral while others may regard
very thing immoral. And even when a universal principle of morality is discovered, there may be
disagreement as to their status or relation to the rest of human knowledge and experience.

Hart….apart from Primary Rules identified through official system with the help of secondary
rule other rules also continue to exist in society…which are then termed as non-legal rules
including moral rules.

are arbitrarily and subjectively created by society, philosophy, religion, and/or individual
conscience.

ideal code of belief and conduct which would be preferred by the sane "moral" person, under
specified conditions.

is synonymous with ethics.

Issues of morality are normally decided by conscience and instinct. So morality is something that
comes natural to a person, of course society, values, norms on which that person grows and
matures can have big role.

Lon L. Fuller

Attempted to distinguish ‘the morality if aspiration’ and ‘the morality of duty’. The former is
concerned with the desired norm of human conduct, independent of human activity; the latter
involves the standards followed by human beings in social relations in particular circumstances.

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Fulfillment of the morality of aspiration necessitates a legal system which will assist in this task
by the recognition and maintenance of social order. The morality of duty will involve the
creation of acceptable codes of conduct which the law will seek to enforce. Further, law itself
must have its own morality.

Positive and Critical Morality

Positive Morality being those social conventions created by man…so possibility of immoral
morals

Critical morality being the standards by which those social conventions could be judge…but
then finding such standards can be like a dog following its tail. Anyways, some people
argue morality and its coherence can be tested in the public domain. And that morality too
shall be, subject to stringent requirements of rationality. FOR INSTANCE LORD Devlin’s
Litmus test / reasonable person test (No Clapham Omnibus)

However, morality based on unreasonable, irrational and unfair grounds slowly but surely
loose their strength and identity and wither away as morality. For Example, Sati,
Homosexuality (at least in case of justification provided by the Emperor Justinian, who
disapproved homosexuality because it caused earthquakes) and so forth.

HLA Hart

Four Cardinal Features of ‘moral’

Importance

Immunity from deliberate Change

Voluntary Character of Moral Offences

The Form of Moral Pressure

So what is then the place of Morality in Law

No one denies that morality can figure in legal argument and legal practice.

So debate lies somewhere else. First there lie many important variants in the claim, itself that
there is a necessary connection between law and morality. Second there is debate on the issue of
extent of influence of these two standards. Merger or intersection – Hart Fuller Debate.

As far as the issue of variants in the claim… Natural, Positive School (Inclusive and
Exclusive Legal Positivism)

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 Classical Natural School – first there are certain principles of true morality of justice,
discoverable by human reason without the aid of revelation even though they have a devine
origin. Second, that man-made laws which conflict with these principles are not valid law.
Lex iniusta non est lex.

Ronald Dworkin,

Legal standard are not merely rules

‘Principles’ have great role in determining legal standards and proper application of law.
Especially when a court is asked to judge in a hard case.

Principles in turn, include morality or moral principles. And the legal authority of such
moral principles depend upon the substantive merit – rather than upon any standard
applicable to a legal rule.

Sometimes morality are enforced by law.

Examples, Interim Constitution of Nepal Articles 12 (3) (1) & (3), 15 (1)

Where Constitution qualifies the application of right to freedom of opinion and expression, right
to form political party, union and associations, on assurance that such freedom do not go against
public morality.

Public Offence Act 2027, Section 2 (c), (c1), (h)

The Act prohibits acts such as, swearing in public, presenting vulgar materials or signs in public,
behaving improperly in public and so forth.

Emanuel Kant, Regarded laws prescribe external conduct whereas morals prescribe internal
conduct, that is, morals alone are concerned with subjective factors, such as motive.

The Law may be too cumbersome an instrument to justify legal intervention in some spheres,
and might thus do more harm than good, as in the case of some sexual irregularities, or it may be
felt that certain moral duties are best left to the individual conscience, as, for instance, the duty to
rescue a drowning man. Again, many legal questions are morally indifferent, for instance, the
rule of the road, or where a choice is to be made whether a loss is to fall on one or other of two
innocent persons.

There may be internal resistance while committing certain crime….

Is abiding by a law moral

Is abiding by a bad, discriminatory and unjust law immoral

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Hart – differences between moral and legal responsibility is due to substantive differences
between the content of legal and moral rules and principles, rather than in semantic distinctions,
eg, there may be important differences in the criteria applied, as for instance, where the law may
rely upon concepts of strict or even absolute liability, which are hard, if not impossible, to
reconcile with our present concept of morality.

Fuller’s Internal morality of Law

Hart…similarities between Moral and legal rules

 They are alike in that they are conceived as binding independently of the consent of the
individual bound and are supported by serious social pressure for conformity
 Compliance with both legal and moral obligations is regarded not as a matter for praise
but as a minimum contribution to social life to be taken as a matter of course
 Both include rules governing the individuals recurring in situations constantly recurring
throughout life rather than special activities or occasions, and though both may include
much that is peculiar to the real or fancied needs of a particular society, both make
demands which must obviously be satisfied by any group of human beings who are to
succeed in living together

Relationship between Moral rules and legal rules

i. Power and authority

Why people abide by law ? it may be because of various reason one of them can be
that people think it is moral to do so.

ii. Influence of morality on law

iii. Interpretation
Dworkin’s hard case and Hart’s penumbra
iv. The Criticism of Law
v. Principles of legality and justice
vi. Legal Validity and Resistance to law.

Distinctions between Moral and Legal rules

Importance

Importance in terms of sacrifice of private interest….However another truism also exist that legal
rules are also important. The importance – however, of legal rules and moral rules – differ in its
nature and degree. Importance may not be necessary in case of legal rules. For example, a legal
rule may be generally thought as unimportant to maintain; indeed it may generally be agreed that

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it should be repealed; yet it remains a legal rule. However, in case of Moral rules it is
inconceivable that a rule no more important remaining as moral rule.

Immunity from deliberate change

Voluntary character of moral offence

Internal and external debate…law external and moral internal…thus unintentional offending of
moral rules is excused. This is also true to a certain extent in case of legal rule, where in absence
of mental element mens rea can be a defence. However, this element may be qualified or
excluded in many cases, for eg. Concept of strict liability.

Moral Pressure

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Case Study
Hart – Devlin Debate

Report of the Committee on Homosexual Offences and Prostitution, Wolfenden Report

“It is not, in our view, the function of the law to intervene in the private lives of citizens, or to
seek to enforce any particular pattern of behavior, further than is necessary to carry out the
purposes we outlined.”

Hence, the Report suggested the decriminalization of specific homosexual acts between
consenting adults in private, and stressed the significance of two particular principles. First that
the function of the criminal law, in the area with which the Report had been concerned, was to
preserve public order and decency, to protect the public from that which was injurious or
offensive and to safeguard the vulnerable against corruption and exploitation. Second there must
remain a realm of private morality which is not the law’s business.

The report argued that unless a deliberate attempt is to be made by society acting through the
agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of
private morality and immorality which is, in brief and crude terms, not the law’s business.

So the Report sought to differentiate between Private and Public Morality and exclude private
morality altogether from the criminal law’s purview.

Devlin in his 1958 lecture criticizes the Report in following terms

Certain moral principles which our society does require to be observed; their breach can be
considered as an offense against society as a whole. The law does not punish all immorality; it
does not condone any immorality. Further, Lord Devlin asks following questions;

1. Has society the right to pass judgment al all on matters of morals? Ought there, in other
words, to be a public morality, or are morals always a matter of private judgment?
2. If society has the right to pass judgment, has it also the right to use the weapon of the law
to enforce it?
3. If so, ought it to use that weapon in all cases or only in some; and if only in some, on
what principles should it distinguish?

In answering first question, Lord Devlin gave a resounding yes. Lord Devlin argued that public
morality is important in keeping a society together and if and when public morality are relaxed,
then members of society will drift apart.

In answering second question, Lord Devlin argued that it is not possible to set any theoretical
limits to the government’s power to legislate against immorality. A society has an undeniable
right to legislate against internal and external dangers. The loosening of communal bonds may be

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a preliminary to total social disintegration and therefore a society should take steps to preserve
its moral code. Hence, a society is entitled to use the law in order to preserve its morality in
precisely the same way that it uses the law to safeguard anything else considered essential to its
existence.

To the last question, Devlin devises a ‘reasonable man test’ in determining the extent of
immorality that law should address. Under this test first Lord Devlin suggest tolerance of the
maximum individual freedom consistent with society’s integrity. Secondly, when any activity
goes beyond this tolerance limit such activity is punishable, this in-turn is determined by the
‘intolerance, indignation and disgust’ created in the mind of the reasonable man. Thirdly, Privacy
must be respected and balanced against the need to enforce the law. Finally, since law is
concerned with minima, not maxima, society should set its standards above those of the law.

Hart then criticized Devlin in the following line. First Hart argued that breach of morality will
not necessarily affect the integrity of society as a whole. Second, criminal sanction for private
morality is in all likelihood disproportionate in inflicting misery and pain to the ‘offender’.
Thirldy, the reasonable man test which judges on the basis of ‘intolerance, indignation and
disgust’ is vague and legislature can never be expected to formulate law to such effect.
Furthermore, since the degree of ‘intolerance, indignation and disgust’ may change from society
and time there will be lack of predictability and coherence in law, if Lord Devlin’s arguments
were to be supported.

The Case of Speluncean Explorers, Fuller

Supreme Court of Newgarth

‘Whoever shall unlawfully take the life of another shall be punished by death”

CJ Truepenny…according to the word of the statute….but will be hard on the defendants so

appeal to the Chief Executive for Clemency

J Foster,

Positive law of Newgarth was inapplicable, as defendants were governed by the law of nature.
Positive law is predicated on the possibility of men’s co-existence within society, and when a
situation occurs in which that co-existence becomes impossible, then the force of the positive
law disappears.

Further, defendant did not violate the spirit of the law. Self defense. Purposive interpretation.

J Tatting

Was not satisfied with both the justices and withdrew from the case.

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J Keen

Enforce positive law, it is not the duty of judge to recommend for clemency

J Handy

No legalism. Judiciary should not loose touch with public and common sense. So acquittal.

Hart – Fuller Debate

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