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Cover Page For Assignment
Assignment for the Subject: Law and justice in globalizing world (LLM-103)
Submitted in the
FACULTY OF LAW
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.
At the highest level of philosophical abstraction the doctrine of the nature of law can and should be
concerned with explaining law within the wider context of social and political institutions. It shows
how the inclination to identify the theory of law with a theory of adjudication and legal considerations
with all those appropriate for courts is based on a short sighted doctrine overlooking the connection of
law with the distinction between executive and deliberative conclusion. Clearly, a theory of
adjudication is a moral theory. It concerns all the considerations affecting reasoning in the courts, both
legal and non-legal.
When the doctrine of the nature of law is identified with a theory of adjudication it becomes itself a
moral theory. The doctrine of the nature of law yields a test for identifying law the use of which
requires no resort to moral or any other evaluative argument. But it does not follow that one can defend
the doctrine of the nature of law itself without using evaluative arguments. Its justification is tied to an
evaluative judgment about the relative importance of various features of social organizations and these
reflect our moral and intellectual interest and concerns.
It is through law that the government fulfils its promises to the people. It reflects the sociological need
of society.
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.
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.
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.
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.
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 Oxford English Dictionary defines the law as:
‘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.We may conclude the
discussion in the words of Gilchrist, "The individual moral life manifests itself in manifold ways. The
state is the supreme condition of the individual moral life, for without the state no moral life is possible.
The state, therefore, regulates other organizations in the common interest. The state, however, has a
direct function in relation to morality."
Points to Remember
Laws may be defined as external rules of human conduct backed by the sovereign political authority.
Law and morality are intimately related to each other.
Laws are generally based on the moral principles of a particular society. Some points of distinction may
be brought out as follows:
(a) Laws regulate external human conduct whereas morality mainly regulates internal conduct.
(b) Laws are universal; morality is variable.
(c) Laws are definite and precise while morality is variable.
(d) Laws are upheld by the coercive power of the state; morality simply enjoys the support of public
opinion or individual conscience.
(e) Laws are studied under Jurisprudence but morality is studied under Ethics.
Law and freedom
Both law and morality imply human freedom. Clearly, without freedom one cannot speak of morality.
But the same holds for law, for if it were automatically and not freely obeyed, men would be mere
robots. Law is not a simple indication of what happens, such as the law of physics; it is an admonition
to free persons about what they are required to do if they wish to live freely and responsibly in society;
and it normally carries with it a sanction or punishment to be imposed on whoever is shown to have
acted against given norms of conduct. Just law, properly understood, appeals to freedom.
Nevertheless one of the most generalized liberal ideas is that law is by nature the enemy of freedom.
Servais Pinckaers holds that Catholic moralists have gone through many centuries under the influence
of this mentality which has led, by reaction, to the anti-law approach of much of contemporary moral
theology. In this view, law and freedom were seen as "two opposed poles, law having the effect of
limitation and imposing itself on freedom with the force of obligation. Freedom and law faced each
other as two proprietors in dispute over the field of human actions. The moralists commonly said, "Law
governs this act, freedom governs that one..." The moralists were traditionally the representatives of the
moral law, and their mission was to show to conscience how to apply it in a particular situation, in a
"case of conscience". Today we witness a strong tendency to invert the roles; the moralists now regard
themselves as defenders of freedom and of personal conscience" [as against the law].
Law and justice
Law cannot attempt to regulate the purely interior sphere of personal conduct; morality can. Human or
civil law is connected with external actions, precisely insofar and because they impinge on the rights or
lawful actions of others. Hence the necessary connection of law with justice. For the regulation of
interpersonal relations must work from the basic principle of justice: "to each his due". Hence arises the
fundamental question of what is due to each one, and from this the further question of human rights.
To each his due. Something is due to each. This is the sense of equality before the law. "The possibility
of giving his or her due not only to a relative, friend, citizen or fellow believer, but also to every human
being simply because he is a person, simply because justice requires it, is the honor of law and of
jurists. If there is an expression of the unity of the human race and of equality between all human
beings, this expression is rightly given by the law, which can exclude no one from its horizon under
pain of altering its specific identity".
Even for those who see law and freedom in mutual opposition, the whole concept of law is essentially
connected with that of justice. The ancient principle lex iniusta non est lex (an unjust law is not a law),
is at the basis of so many modern protests in the name of freedom. "This law is discriminatory,
therefore it is not just". But justice is a moral concept; so these protests bear out the intrinsic connection
between law and morality,
"There is another crucial link between the virtues and law, for knowing how to apply the law is itself
possible only for someone who possesses the virtue of justice".
'The law must respond to "living situations"...' Very good, but not in the sense that it must take the
situation as its norm. Justice must remain the norm, and sometimes the law must regain ground for
justice.
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.
Endnotes
# http://www.JStore.com/law_and_morality.php accessed on Thursday, 15th October, 2015 at 12:15
pm
# Trpathi, B.N. Mani, Jurisprudence (Legal Theories), Allahbad law Agency, 18th Edition (2008), p
140
# http://theoryofjurisprudence.blogspot.in/2006/08/moral-as-part-of-law.html accessed on Friday 16th
October, 2015 at 13:30 pm
# http://Law and Morality _ www.cormacburke.or.ke.html accessed at 16th October, 2015, at 12:30 pm
# http://Relation between Law and Morality or Ethics.html accessed on 15th October, 2015 at 14:00 pm
# Servais Pinckaers: Pour une Lecture de Veritatis Splendor, Paris, 19
# 95, pp. 41-42.
# Pope John Paul II, Address to the International Union of Catholic Jurists, Nov. 24, 2000.
# Alasdair MacIntyre, After Virtue, 1984 (2nd Edition), p. 152.
# Supranote 3 at p 146
# Paton, A Text Book of Jurisprudence
# Supranote 10 at p 147