ASSIGNMENT ON

RELATIONSHIP BETWEEN LAW AND MORALITY:

EMERGING TRENDS IN INDIA
SUBJECT- JURISPRUDENCE

SUBMITTED TO:

Dr. Pradeep Singh

Professor, Jurisprudence

SUBMITTED BY:

Shubham Yadav

Roll -210616

LL.M 1st Sem

1
 ACKNOWLEDGEMENT

At the outset, I thank the Almighty who gave me the strength to accomplish this project with
sheer hard work and honesty. I take this opportunity to observe protocol to show my deep
gratitude to our revered Jurisprudence course teacher, Prof. Pradeep Singh his kind gesture in
allotting me such topic as research project. His timely advice, direction and valuable
assistance tremendously boosted me during the making of this project.

Secondly, all this wouldn’t have been possible without my parents and friends who gave their
valuable time for guidance, boosted my confidence and helped me a lot in completing this
project without any drawbacks. Hence. I am forever indebted and grateful to them.

2
 TABLE OF CONTENTS

INTRODUCTION....................................................................................................................4

CONCEPT OF LAW AND MORALITY..............................................................................5

LAW AND MORAILTY DEBATE: PERSPECTIVE OF GREAT JURISTS..................6

NEXUS OF LAW AND MORALITY..................................................................................10

DISTINCTION BETWEEN LAW AND MORALITY......................................................13

CURRENT JUDICIAL TREND WITH CONTEMPORARY ISSUES...........................14

CONCLUSION.......................................................................................................................17

BIBLIOGRAPHY..................................................................................................................18

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 INTRODUCTION

Ever since the revival of the scientific study of jurisprudence the connection of law and
morality has been 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 purposes of the jurist, law is absolutely independent of morality, almost to
the opposite position, 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 much more than
merely theoretical consequence.

The following assignment will try to analyse this relationship between law and morality, how
they are similar and where the differences lies. Also, it will put an insight of the great Jurist
of this subject and in the last it will discuss the modern trends with the help of suitable cases.

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 CONCEPT OF LAW AND MORALITY

1. ANCIENT TIMES

In the early stages 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.

2. 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 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.

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 LAW AND MORAILTY DEBATE: PERSPECTIVE OF GREAT JURISTS

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.

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 of
freedom"

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.

HEGEL (1770-1831)

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According to HEGEL, “Law is a right in the sense of freedom” where freedom comes from
the existence of will. Also, free will has three main components and basic levels of
development, namely, Abstract law, Moral ethics and Morality. He also argues that Kantian
morality in separating the concept of the right from the morality of our inclinations, expresses
simply an "ought”. Something that 'ought to be' the case but cannot simply 'is'. He emphasises
that Kantian morality is abstract and formal, and it has not provided content to moral
obligations. Hegel is very much inspired by Kant's conception of morality. Hegel shares with
Kant that the moral law is apprehended by reason. The moral law is binding upon all human
beings without considering the personal interests of the agents. W.H. Walsh observes that,
"Both lay emphasis on the objective character of the moral law, which they take to be binding
on agents without regard to their personal wishes; both argue that the content of the law is
determined by rational principles and can accordingly be apprehended by reason." But Hegel
also fundamentally differs from Kant on the issues of ethical formalism and the duty for the
sake of duty. Hegel levels two important charges on KANT. First, Hegel argues that Kant's
categorical imperative is formal and empty of content. Secondly, Kantian ethics offers no
solution to the opposition between morality and self-interest. I shall try to explain and
examine these two main charges against Kantian ethics below. Kant holds that morality rests
on pure practical reason, free from any particular motives or intention. The moral worth of an
action lies in obeying the moral law for its own sake. Kant calls it 'duty for the sake of duty'.
An action is morally good if it is performed out of the motive of duty. He holds that we must
have respect or reverence towards the moral law . Kant states, "Duty is the necessity to act
out of reverence for the Zaw.',J4 The moral law is universally applicable to all human beings.
It is ought to be obeyed for its own sake. As a result, Hegel thinks that Kantian moral law can
yield only the bare, universal form. free from content.

STAMMLER (1856-1938)
STAMMLER was a Neo-Kantian. He defined law as, "species of will, other-regarding, self-
authoritative and inviolable”. For him, a just law was the highest expression of man’s social
life and aims at preservation of freedom of individuals. According to him, the two
fundamental principles necessary for a just law were: 1) Principles of respect, and 2) The
principle of immunity participation. With a view to distinguishing the new revived natural
law from the older one, he called the former as “natural law with variable content According

7
to him, law of nature means "Fust law” which harmonizes the purposes in the society. The
purpose of law is not to protect the will of one but to unify the purposes of all.

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 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 of 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. According to
AUSTIN, the notion of command is "the key to the science of jurisprudence 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)

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

8
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.

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 NEXUS OF LAW AND MORALITY

In considering the relationship between law and morals much will depend on how one defines
law. Analytical, Historical, Philosophical and Sociological jurists have all defined 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
place in law. But a definition which regards all the rules and principles which govern and
influence human conduct as law allows morals to play a very important rule in the field of
law.

A study of the relationship between law and morals can be made from two angles.

a) Morality as basis of law (former Concept)

b) Morality as basis of law where law acknowledges the morality for making it (Present
Concept).

Morality generally means ‘rules governing human behaviour’ or sometimes one’s personal
views about a thing or activity which should not be imposed upon others as these are not
enforceable. As already said, earlier law was purely based on morals. When state came into
being, the society opted for those values and rules which were important from its point and
put its own sanction behind it. These norms were known as law. The rules meant for good of
the individual and which were not observed continuously by the state in its real term called
morals. However, law and morality have same inception but by the time, they diverged in the
course of its development. Many rules are mutual for both law and morality like murder,
theft, dacoity and robbery are some of the acts, against law as well as morality. In Queen v.
Dudley & Stephens1, three seamen and a boy were cast away in the storm on the high seas in
an open boat. They had no food and drinking water in the boat. In order to save themselves
from certain deaths as many days had passed without food, they killed the boy and jury
returned a special verdict. CJ Colerige observed: “Was it more necessary to kill him than one

1
14 QBD 273

10
of the grown-up men? The answer must be No….” The bench of five judges held, “no man
has a right to take another’s life to save his own.

However, it cannot be said that morals are the basis of legal rules. It can be said that usually
law has some base of morals but in contemporary world, law and morality can be described
separately. There are many things, which may be immoral but not necessarily illegal like
cheating on your friend or spouse, breaking promises (for certain sets of people) and which
may be illegal but not necessarily immoral like drinking under age, abortion (for certain sets
of people). Some scholars argue that “morality cannot be legislated” and I agree with those
scholars because it is individual’s will or conscience. For example, in Indian Society, morals
say that inter caste marriages or love marriages should not take place but when two
individuals, with their will and consent want to marry, it is an independent state, and
everyone has right to choose his life partner according to his/her will. Where the issue of
intervention by the law in such Indian democratic system arises? Indeed, that person has to
take a look at his family, but law has nothing to do with such situation. Take another issue of
living relationship, which has a moral ban on it. My view is that when two major individuals
with their free consent decide to live together, where the question of infringement of moral
standards arises. There is no infringement of moral standards and no intervention by law.
There are also other issues like homosexuality, prostitution which are conflicting in order to
decide morality and law, therefore, morality cannot be legislated and as it depends upon the
wishes of the individual except under certain circumstances. Morality has power to control
the behavior of an individual therefore, it is important that it must not be excluded in the
society. Even International Humanitarian Laws, laid certain moral standards as ingredient of
law. Whenever, morality raises affirmative impact on society, a complete separation of law
and morality is not possible in order to maintain balance. The aim of the law is to provide
justice to people and justice in its popular meaning based upon the morals. In Stephen’s case 2,
it was held that the principle evolved that no man has a right to take another’s life to save his
own life. In India, Supreme Court has also laid that in case of conflict of fundamental rights
of two individuals, the decision is to be made on the basis of morals. In the case, the
appellant’s blood sample was detected HIV (+). When due to disclosure, it was
acknowledged by the ‘A’, fiancée of appellant and the proposed marriage of the appellant
was called off. The appellant sued the hospital authorities for damages on account of
violation of appellant’s right to privacy as well as doctor’s duty to maintain confidentiality.

2
supra

11
The Apex Court held that “where there is a clash between two fundamental rights, as in the
instant case, namely the appellant’s right to privacy as a part of right to life and A’s right to
lead a healthy life which is her fundamental right under Article 21, the right which would
advance the public morality or public interest, would alone be enforced through the process
of the court, for the reason that moral consideration cannot be kept at bay and the judges are
not expected to sit as mute structures of clay in the hall known as the courtroom, but have to
be sensitive, in the sense that they must keep their fingers firmly upon the pulse of the
accepted morality of the day”3Law cannot make people completely perfect. It is just for
having minimum standards and setting up of standards at very high level can render the laws
very ineffective. The purpose of law is not to render laws of the land ineffective but to
maintain law and order in the country. If someone violates these minimum standards, then
punishment is remedy. In this way, morality has got recognition, but it does not convey that
all the legal rules are based on morals. There are legal rules which are not based on morality.
Some of the examples are vicarious liability, principle of Absolute liability where one man is
punished for the act of another and one has to pay the incurred obligations in a case, when he
has not done any act, arising any obligation, respectively.

3
Mr. X v. Hospital Z (1998) 8 SCC 296

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 DISTINCTION BETWEEN LAW AND MORALITY

In modern times, there is a distinction between law and morality. Roscoe Pound 4states that
“as to application of moral and legal precepts respectively, it is said that moral principles are
of individual and relative application; they must be applied in reference to circumstances and
individuals, whereas legal rules are of general and absolute application”. The morality
depends upon the conscience or will of the individual. An act moral for me may be immoral
for you and morals mould the character of an individual. The best example can be taken of
marriage in Hindus and Muslims. In Hindus, only one marriage is considered as sacred and
bigamy is a sin and in Muslims, they are allowed to marry four women at one point of time.
Law is concerned with the society collectively and not with the wishes of the individual. Law
looks for act of the individual, meaning thereby, it has nothing to do with the motive of the
person, committed the wrong whereas morality sees for the motive or intention of the person,
what his conscience says. There is a famous maxim, “Ignorantia juris non execusat” meaning
thereby, ignorance of law is no excuse. It is presumed that one should know the law of the
land, if a person does not follow the law; state is empowered to punish that person whereas
morality is not coercive in nature. State has no power to punish for violation of such morality.
In case of application of law, it has universal character with no ambiguity or vagueness
whereas in case of application of morality, it differs from case to case as it is vague and
uncertain. It is a matter of choice of a person. Despite of the differences stated above, there is
affinity between the two. Law ensures conformity to the code of behavioural law and it is
essential as it cannot completely ignore the ethical and moral aspects. If there are laws, not up
to the standards of ethical behaviour, such laws cannot survive in contemporary India. In a

4
Law and Morals

13
sensitive country in terms of ethics like India, riots take place even on very small causes. In
order to survive, a law must meet the expected criteria or social consciousness.

CURRENT JUDICIAL TREND WITH CONTEMPORARY ISSUES

Presently, scenario is such that law and morality have different meaning and application.
These values are dynamic. In this changing society, social values are changing rapidly. The
recent Judgment of the court in decriminalising Section 377 of IPC, 1860 can be taken as
example5. In this case what is taken into consideration is Constitutional Morality and not
social morality. Each person’s fundamental rights are given priority to the over dilemma
related to Morality. As Sec 77 penalises unnatural sex, which for many is immoral, this
progressive judgment by the court is a direct shift from the moral notions prevailing in the
society. Another case, which actually led to the above judgment is National Legal Services
Authority v. Union of India and others6. In this case, the Court held that “Notions of social
morality are inherently subjective, and the criminal law cannot be used as a means to unduly
interfere with the domain of personal autonomy. Morality and criminality are not
coextensive.”

Another example in this regard is decriminalisation of Adultery 7. In this case, there is a

debate regarding the question that whether Adultery should be penalised as it is a moral
wrong and affects society at large or whether civil remedy will serve the purpose. The court
observed that “criminal sanction may be justified where there is a public element in the
wrong, such as offences against State security, and the like. Also, the element of public
censure, visiting the delinquent with penal consequences, and overriding individual rights,
would be justified only when the society is directly impacted by such conduct. In fact, a much
stronger justification is required where an offence is punishable with imprisonment.

Another criminal issue is Obscenity, defined by the Indian Penal Code, 1860, where the Apex
court through no. of its judgements sets the principles that Obscenity means “the quality of

5
Navtej Singh Johar vs Union Of India Ministry Of Law And ... on 6 September, 2018
6
(2014) 5 SCC 438
7
 Joseph Shine v. Union of India, judgment dated 28.09.2018

14
being obscene which means offensive to modesty or decency; lewd, filthy and repulsive” 8

and it may vary from country to country depending on the standards of morals of
contemporary society.” This verdict of the Supreme Court states that it also depends upon the
morals, which differs from person to person or society to society. 9The court has accepted the
view, that morals and law are two different things in contemporary society. In K.A. Abbas v.
Union of India10, the Court held that “sex and obscenity are not always synonymous, and it
was wrong to classify sex as essentially obscene or even indecent or immoral” Further, in
Bobby Art International case11, regarding the depiction of the rape scene in the film Bandit
Queen, the Court held that “the object was not to arouse prurient feelings but revulsion for
the perpetrators. In determining, whether an act is obscene, regard should be given to recent
times or modern scenario of that place”.

Euthanasia is also a debatable issue which can be contextualized in terms of morality and
Law. There was earnest and profound debate about the morality, legality and practicality of
physician assisted suicide. After a lot of struggle and constant pleading by the related NGOs
Supreme Court in the case of Aruna Shanbaug v. Union of India and others 12 allowed
Passive euthanasia in certain conditions. However, it was denied to Aruna Shaunbaug in this
particular case.

Needs are changing rapidly so as morals. Therefore, law and morality are separable and due
to the rapid growth of the society, morals cannot stand static. In Ram Chandra Bhagat v.
State of Jharkhand13, there was difference of opinion between the judges. According to
Justice Katju, “Often an act may be regarded as immoral by society, but it may not be illegal.
To be illegal the act must clearly attract some specific provision of the Penal Code, or some
other statute. In the present case, it can be said that the appellant has not behaved like a
decent man but, in my opinion, Section 493 of IPC is not attracted” and thus law is different
from morality. Whereas Justice Mrs. Mishra said “While there is no difficulty in accepting the
position that law and morality might stand on a different footing although they are
inextricably linked in my perception, yet I agree that legal decision cannot be based purely
on morality” and it can be said that moral aspects of a particular actions are relevant to
determine the act of the accused.

8
Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881 at p.885.
9
Chandrakant Kalyandas Kakodkar v. State of Maharashtra (1969) 2 SCC 687 at p. 693
10
(1970) 2 SCC 780
11
(1996) 4 SCC 1
12
Decided on 7 March 2011
13
Decided on 24 November 2010

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In D. Velusamy V. D. Patchaiammal14, after examining the evidences, Apex Court came to
the conclusion that women who has a living in relationship with a man can claim for
maintenance under section 20 (1) (d) of The Protection of Women from Domestic Violence
Act, 2005. The subordinate court was declined to grant maintenance as the lady was not
legally wedded wife. They said, “Indian society is changing, and this change has been
reflected and recognized by Parliament by enacting The Protection of Women from Domestic
Violence Act, 2005”. Living relationship is a new phenomenon, which was not recognized by
the law before the Act of 2005 and judgement of this case but now considering the dynamic
social values and morals, court awarded the maintenance to the lady without encountering it
as immoral by the society.

If one looks at Preamble of Indian Constitution, in the end, it endeavours to accomplish the
morals and it indicates that moral of the contemporary age. Considering all these cases, it can
be said that social values of the people have changed due to globalization and rapid growth of
the country.

14
2009 (160) DLT 27

16
 CONCLUSION

On a concluding note, it can be said that Morality and Law are not one and the same thing.
Morality is one of the sources of law or the basis of law but not law in itself. Also, there is no
straitjacket formula to define Morality, What maybe moral for one maybe immoral for
another. Changed life style, freedom, liberty has its place in law and in such situation
dependence of law on morality is not possible. With modernisation, the idealistic values of
ethics, morality have drastically changed and so to meet the current situation of the society,
reliance on earlier notions of morality is not a good thing. The novel India must reflect in the
law of the land or statutes and it is taking place as can be seen from permitting of
homosexuality, permitting euthanasia etc.

Further, law and morality can be same when morality and public notion is same, and law and
morality cannot be same when morality and public notion is in engagement. Therefore,
Morality and public opinion cannot be same if seen in terms of each and every individual.

At the end, it is best to understand Morality as an end in itself and Law as a means to achieve
an end. Thus, law can be used for several purposes for smooth functioning of the society
where morality will be one of the factors but not the only factor which law governs.

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 BIBLIOGRAPHY

• Singh, Dr. Avtar & Kaur, Dr. Harpreet, (2009), Introduction to Jurisprudence, Nagpur,
Lexis Nexis Butterworths Wadhwa.

• Mahajan, V.D, Jurisprudence & Legal Theory, Lucknow, Eastern Book Company.

• Hart, H.L.A, The Concept of Law, Oxford University Press.

• Tripathi, Dr. B.N. Mani & Mani Rajeev, An Introduction to Jurisprudence (Legal Theory),
Faridabad, Allahabad Law Agency.

• W. Bradley Wendel, “Legal Ethics and the Separation of Law and Morals”, Cornell Law
School research paper series.

• Bradley Kar Professor Robin, “The Deep Structure of Law and Morality”, March 2006,
Loyola Law School legal studies paper.

• Dube, Dr. Dipa, “Some Reflections on Interplay of Law and Morality in Contemporary
India”, Indian Institute of Technology, Kharagpur.

• Gardner John (May 2010), “Hart on Legality, Justice, and Morality”, University of Oxford
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• http://legalserviceindia.com/articles/lmor.htm, October 2011

• http://www.cygneis.com/ethics/gamoralist.htm, October 2011

• http://www.sociologyguide.com/morality/law-and-morality.php, October 2011

• http://www.convertjournal.com/2011/09/morality-vs-law/, October 2011

• http://www.qcc.cuny.edu/socialsciences/ppecorino/intro_text/Chapter%208%20Ethics

/Mores_Law_Morality.htm, October 2011

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• http://www.mncuf.org/law.htm, October 2011

• http://www.radicalnewthoughts.com/morality-and-the-law.html, October 2011

• http://www.garlikov.com/philosophy/LOM.html, October 2011

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