Introduction

For living peacefully in a society an individual follows various norms,

conducts, values, rules, beliefs, etc. which tell how a person should
behave in a society. It becomes important to create the difference
between them in order to avoid ambiguity and conflict. One such
deliberate effort is always taken when distinguishing between law
and morality. These are such concepts which on some parts seem
inter-related while in some other parts seem completely different
concepts. Many Jurists debated on the same issue of law and
morality in Jurisprudence .

Law

Black’s Law Dictionary says that law is “A body of rules of action

or conduct prescribed by controlling authority and having binding
legal force. That which must be obeyed and followed by citizens
subject to sanctions or legal consequence is a law.”

In simple words, the law is a bunch of rules and regulations formed

by the authority(legislature) and enforced by the executive body
which has legal sanctity. And which the citizens are obliged to follow
in order to avoid the legal consequences.

Morality

Morality in simple words is the principles, values, beliefs and

behaviour created and carried forward by the society. They do not
have legal sanctity but bind a person to societal obligations or are
dependent upon the conscience of the individual.

Example- Going to the temple and praying to God is morality but is

not a legal sanction.
Many of the legislations are devoid of morality while there are also
many legislations which along with law have morality as the base
element. For example- a Live-in relationship is legal but is not in
consensus with morality. Whereas, the law against human
trafficking has morality as its element.

Law and Morality in Jurisprudence

Law and morals are the systems which govern the behaviour of
individuals in society. Laws are rules and regulations which are
sanctioned by the authority and are compulsory to follow. While
morals are the standards of behaviour that individuals should follow
in order to live peacefully with acceptability but they are not
compulsory like law. These two concepts have a complex
relationship which has evolved over time. In ancient times, law and
morality were seen as similar concepts but with time and
development, it has been clarified that these two are different but
interdependent concepts.

History of Law and Morality

Because of their budding stage, law and morals were not properly
distinguished during ancient times. Dharma in India was regarded
as the Law and morality. Taking the example of Hindu Law which
was primarily derived from the Vedas and smritis, which were
actually the values of people. They signified the identicality between
law and morals. However, with the advent of Mimansa and
commentaries, certain principles were put forth based on which
distinction was made between the obligatory rules and the
recommendatory rules. The former are the rules which are
mandatory to be followed and are considered law whereas the latter
ones are not mandatory rules but they are considered good for the
person if they are followed, they are the morals.

In the middle age period, the morals of Christianity were

considered as the basis of law and the Bible had great influence
over the legal regulations.
Relationship between Law and Morality
1. Moral as the origin of law

In ancient times there was no clear distinction between law and

morality. And due to this lack of distinction, the origin of every law
was found in the principles which people thought as morally correct.
In the end, the state selected those morally correct principles and
made them into laws, thus forming similarities between law and
morality. For example, It is morally wrong to commit theft or
robbery, the state gave this moral, the form of law. Even though
the distinction between law and morals has been put forth but
morals form an integral part of the law. Most of the laws have some
or the other principles of morality.

2. Moral as the test of law

Many Jurists are of the opinion that those laws which do not follow
morality must be removed, as the end purpose of every law is to
impart justice and ensure the welfare of the people.

While making any law it always has to be seen that, whether it is in

consonance with moral values or not, if it doesn’t follow the moral
standards it should be removed.

3. Morality as the end of the law

Laws were made to serve the purpose of creating a society having

the elements of fairness, justice and equality. Laws were made for
the purpose of providing justice to a person who suffered from
something wrong. And on the other hand, morality provided certain
standards to sustain some order in society with fewer conflicts. In
other words, the object of morality is to remove conflicts from
society. Thus we can see, that the main object of law and morality
is the same making both the concepts related to each other.
Difference between Law and Morality
Although we can see law and Morality in some aspects as
interdependent and also identical concepts. But there are some
factors which differentiate these two.

1. It is the external source from which the law is obtained, in simple

words law is derived from the rules and regulations, whereas
morality is derived from the individual’s inner self (internal source)
i.e. the individual mind of the person.

2. Laws are focused upon the individual’s conduct for which it

entrusts certain standards whereas morality is concerned with the
innate values of the conduct in other words it is focused upon the
motive.

3. Laws don’t change from person to person, it treats everyone the

same, whereas morality is a subjective concept, it differs for every
person based on their conscience.

4. Laws are influenced by morality, which means they are created

by taking morals into consideration. Morality, on the other hand,
existed way before the laws were formulated.

5. There is punishment for the disobedience of law but in morality,

there is no such punishment for anything done which is wrong
morally.

6. Laws are mandatory to be followed as laid down by the sovereign

for the people governed by it. However, morality is rather a
personal concept it doesn’t lay down certain mandatory conduct
have to be followed.

7. Laws control the behaviour of a person legally whereas morals

control the behaviour of a person morally.
Philosophies Regarding Law and Morality
The evolution of law was aided by two broad theories of legal
positivism (analytical school) and natural law theory.

The natural law theory states that any law which is unjust and
hence infringes the principle of morality, cannot be considered as
law. In this theory, it is inferred that the laws and morality are
deeply interconnected. Natural law gives the idea that Morality in
human beings is derived from nature which took the form of rules
and regulations. The Central idea behind natural law is that it
embodies moral principles which depend upon the nature of the
universe and which can be discovered for natural reasons. Jurists
who aided this theory of natural law were Augustine, Thomas
Aquinas, Lon Fuller, John Locke and many more.

Legal positivism states that legal entities sans morality. The theory
does not deny the impact of morals on laws but says that the laws
are created by men and hence should have a clear distinction from
morality. It emphasises that laws and morality are two different
concepts and laws are the result of sovereign power and not
morality. Theorists in support of legal positivism were John Austin
and H.L.A Hart.

Debate between Hart and Fuller

H.L.A Hart

Hart accepted the law as a command. He emphasised the

separation of positive law from morality. He believed that judicial
decisions are to be deduced from the pre-determined rules without
recourse to social aims, policies and morality. Rational arguments
cannot defend moral judgements.

According to Hart, the law is a system having two types of rules

providing key to the science of Jurisprudence. These rules are
Primary Rules and Secondary Rules. Primary rules impose duties
whereas Secondary Rules give power and the essence of law is in
the union of these two rules.

Primary rules are binding as they impose a duty upon the

individuals whereas Secondary Rules being power conferring,
empowers the legislators to formulate or modify policies according
to the needs of the society.

Lon Fuller

Lon Fuller criticized his views of Hart on the separation of law and
morality. He believed the legal system is made for regulating the
conduct of human beings and therefore it must have in law the
element of “it is” and “it ought to be”. In other words, it means that
law and morality cannot be divorced from each other. Fuller
maintained that law is a product of sustained purpose and efforts
which contains its own implicit morality. He believes that law cannot
fully serve its purpose of imparting justice and preventing misery if
they do not conform to the “internal morality”. According to Fuller,
eight conditions forming the internal morality are-

1. Law should be general

2. It should be publicly promulgated
3. Laws should be prospective in nature (they should apply
to future behaviour, not to the past).
4. Laws should be clear and intelligible
5. There should be no contradiction between laws
6. It should be constant
7. There must be the possibility to obey the law
8. The law should be administered in a way that should not
diverge from its obvious and apparent meaning.
These eight principles were highly criticized by Hart. According to
him, these principles are the means of efficiency and are not
defining morality.
Analysis of the Debate

Looking at the thoughts of both these theorists we can say that

their object was to achieve justice and order but their ways were
different. There are elements which contributes to the formation of
law, therefore the matter cannot be simply put as the relationship
between law and morals, as so many factors influence law, and one
of them is moral.

In some aspects of law, we find the element of morality while in

some laws morality does not play many parts for eg, legalising of
abortion. We can say that in certain laws, the need for perfectly
differentiating between the law and morality has to be identified
while in some laws the difference between the law and morality can
be set aside and certain overlapping between them can be allowed.
But it is always the legal idea which prevails over subjective
morality.

Dudley and Stephens Case

In this case, the principles of law and morality were distinguished
while punishing the grave offence of cannibalism. According to the
facts of the case, the accused were the sea men. Their ship capsized
in a storm they along with a boy, about seventeen years of age
managed to float on a wooden plank. They continued to drift for
many days without food and drinking water. When the death of
starvation and thirst was imminent, they killed the boy and
continued to eat his flesh for a few days until they were rescued. On
being prosecuted for murder, they pleaded that self-preservation
was the utmost necessity and they had no option except to kill the
boy.

Judgement of the court

The court held that in order to save his own life a person cannot
sacrifice another person’s life. And in this case, there was no such
evidence which could justify their killing of the boy and hence they
were guilty of murder. Although it was considered morally
justifiable, for saving the life of all of them their action cannot be
legally justified. One cannot kill another person for overcoming the
inconvenience of attempting to save his life and claim it justifiable.

Conclusion
Law has heterogeneous properties it contains various elements
which contribute to making better law and among these, morality is
one the element. In ancient times morality and laws were
considered similar concepts but with the development of time, these
two concepts were separated and discussed properly. Debates
between the theorists lead to the formation of different views
regarding the relations as well as the distinction between law and
morality. By analysing these two concepts we find that morals in
some aspects have an effect on the laws but they do not override
the legal entity as morality is subjective.