Law and Morals

n the beginning there was no distinction or division between law and

morals. Hindu law has no sub-division in the Vedas. We see the religion

and law are mixed. Mimansa laid down certain principles to distinguish

the obligatory and recommendatory injunctions. In Islam, the books of

and theological matters. The entire canon

law had not separated the legal
law of Islam is divided in five injunctions known as 'Ahkamul Khamsa

Mustahab
(Five types of rules) Farz (obligatory), Haram (Forbidden),

and Jaiz (Permissible).

(Recommendatory), Makruh (to be refrained),

Muamlat' and 'Ibadat' at the same place. In west,

Early jurists discuss
similar. Greeks, Romans and Church people recognized
the position was

the basis of law in the name of 'natural law'.

certain moral principles as

in legal matters, it was

After the denial of Church's authority
the law
asserted that the law and moral
are separate and distinct and

state and not from morals. Morals

have their
derives its authority from the

or conscience. In 17" and 18" centuries, natural law

source in the religion

moral foundation. Then in 19th

theories became popular which had a

that law has no connection with morality.

century, Austin propounded
that morals are not subject matter of
Many jurists supported this idea
 Jurisprudence. Kelson also accepted that only the legal norms are subject

matter of Jurisprudence.

The Sociological approach to law indirectly studies morals

also. Though they always make a distinction between law and morals and

consider law as the proper subject matter of study. In tracing the origin,

development, function and ends of law, they make a study of forces

which influence the law. Thus, their field of study extends to the various

social sciences
including morals.

Distinction between Law and Morals

It is very difficult to draw a definite line of division between moral

and legal rules, between ethical and juristical standards.

Ethical rules are social ideals, goodness, virtue, honour for which

men strive in their conduct. These cannot be attained

through law, but such

a definition is too wide to distinguish between legal and moral rules.

Jellenick contends that law is minimum ethics, so in other words it

is minimum morality formulated and adopted by a given society. But many

rules of law have nothing to do with moral
precepts, e.g., nules of
inheritance, the laws of negotiable instrument, law of limitation, etc.

For this reason, Salmond says that, "law is

neither right alone nor

might alone, but a combination of two."

 t 15 Tightly said that in a word the law has just the same centre as

morals but it has by no means the same circumference.

the
Vinogradoff holds that object of law is the submission of

or
individual to the will of the organized society, while the tendency

individual the dictates of his own conscience.

morality is to subject the to

rests equally on law and

Capitant says that social organization

obligatory; those of law are enforced by

morals. The precepts of both are

those of morals are addressed only to the individual

public authority,

conscience.

1. Character:

The morals are concerned with the individual and lay down

moulding his character.

the rules for

down rules
Law concentrates mainly on the society and lays

individual with each other and state.

concerning the relationships of

2. Conduct:
Moral looks to the intrinsic value of conduct or in other words they

look into motive.

Law is concerned with the conduct of individual for which it lays

down its standards.

3. Purpose:
 be followea
ne morals are an end themselves and ought to

because these rules are good in themselves.

LW S 1or the purpose of convenience and expediency and its chief

aim is to help a smooth running of the society.

4. Reason for observation:

The observance of the moral is a matter of individual conscience.

There is a complete state machinery to compel for observance of law.

5. Value
Morals considered of universal value, but law is dependent on

time and place and therefore law varies from society to society.

6. As to the application of moral and law, Roscoe Pound said,

"Moral principles are of individual and relative application, they

must be applied with reference to circumstances and individuals, whereas

legal rules are of general and absolute application,"

Relationship ofLaw and Morals

Law and Morals are not opposed to each other; they are very

closely related to each other. The relationship of Law and Morals depends

upon the definition of law which is given differently by diífferent jurists.

e.g., if law is treated as the command of sovereign, there is no scope of

morals.
 ror a
general study of law and morals, we have three different angles:

a. Morals as the basis of law.

b. Morals as the test of positive law.

c. Morals as the end of law.

A.Morals as the basis of law:

but diverge in their
Law and Morals have a common origin

As law and morals have come from the common stock,

development.

to both. For example, to kill a man or to steal are

many rules are common

it is said that law is the

acts against law and morals both. On this ground

minimum ethics.

***Queen v. Dudley & Stephens***

Three men were on the boat for many days in storm in high sea and they

killed their companion boy and fed the boy in order to save themselves.

Coleridge, C.J. (Four Judges concurring) observed

"To preserve one's life is generally speaking a duty, but it may be

plainest and the highest duty to sacrifice it, ... these duties impose on

men the moral necessity, no of the preservation, but of the sacrifices of

their lives for others... It is not correct, therefore to say that there is any

absolute or unqualified necessity for preserving one's life"

 lite to savc
ne
principle is that no man has a right to take another's

Own.

The Supreme Court of India held that in case of contlict or u

on the
undamental Rights of two individuals, the decision is to be made

basis of the morals.

***Mr. X. Hospital Z (1998 S.C.) ***

The appellant was HIV (+) and the hospital disclosed it to the girl from

whom he was supposed to marry. The contention was that the right of

privacy is violated and the duty to maintain confidentiality was not

observed.

The court observed:

"since right of life includes right to lead a

healthy life so as to

enjoy all the faculties of the human body in their prime condition, the

respondent by their disclosure that the appellant was HIV (+) cannot be
said to have in any way either violated the rule
of confidentiality or the
right to privacy. Moreover, where there is a clash of two fundamental
rights as in the instant case (.. 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
 in the
clay in the hall known as the court roo, but have to be sensitive
the
cUSe hat they must keep their finger firmly upon the pulse of

accepted morality of the day."

not based upon morals

However, it is to be clear that all legal rules are

and some of them even opposcd to morals.

B.Morals as the test of Law:

law principles were so
In old theories the morals, natural
that the law which
necessary that the jurists of this approach contended

does not confirm to natural law is to be disobeyed and the government

French Revolution was

which makes such law should be overthrown. The

theory is not
inspired by such theories. In the modern times, this

the various factors which secure obedience to law,

acceptable, but among

the conformity of law with morals is a very important factor. For this

reason, Paton remarked:

"f the law lags behind the popular standards, it falls into disrepute, if

the legal standards are too high, there are great dificulties of

enforcement"

C.Morals as the end of Law:

A number of jurists defined law in terms
of justice and justice
in its popular sense is based morals. For
on
Analytical jurists, the idea of
 the
Justice and morals are beyond the scope of jurisprudence,
Ociological School studies the law in terms o f its purpose, 1t is a mea

O an end and his end is the welfare of the society. Many of the m o a e r

deinitions of law say that the evaluation of interest is a very important

Test of law. This can be done properly in the context of socialy

in their turns closely related to morals. This

recognized values, which are

ltimately the morals become the cnd of law.

Conclusion:
The morals are not the only factor which influences the law, but it

is one of the most important factors. Law and morals act and react upon

and mould each other. In the name of justice, equity, good faith,

conscience, morals have in filtered into the fabrics of law.

The legal rules are not only backed by legal sanctions alone but the

morals help in it too. Thus, morals perfect the law, e.g. Paton said:

"In marriage, so long as love persists there is little need of law to rule

the relations of the husband and wife - but the solicitor come through

"

the door, as love flies out of the window.

The brutalities and inhuman acts in the world wars made the

people to turn back to morals. Ferhaps, there 1S no other so forceful

ground to justify the Nuremberg Trial as morals. If the law is to remain

closer to the life of the people and eftective, it must not ignore morals.
 Justice Krishnann
Iyer, rightly observed
e cannot regain our glory, unless we realize the importance of

noralnty n our present legal system. In old Hindu Law, among the sources

Sadachar' (good conduct) was a source of law, although in its name,

SOmetimes bad customs were introduced in the society, Kelson in his "Pure

Theory of Law' excludes all other extraneous things including morality

from law. But for administration of law, like Bentham, Kelson have also

conceded that administration of law ought morally to embody certain

principles of fair play, impartiality and justice so that like cases are

treated alike. Similarly public morality according to Lord Delvin provides

a firm structure to any human society and that the law especially criminal

law must regard it as its primary function to maintain this public

morality"