Law vs Morality

• Law and morality can be understood as concepts, but any

attempt made to define them becomes difficult.
• Laws are concerned with legal rights and duties which are
protected and enforced by the State.
• They are backed by sanction, and therefore if one disobeys the
laws of the State, they are liable to be punished.
• Morality categorizes human behavior as good or bad. The
cannons of morality however are based on moral duties and
obligations. If one does not adhere to the standards of morality
that is prescribed, he cannot be held legally liable. However,
morality involves incentives of sorts. When we do the right thing,
we experience virtue and enjoy praise and when we do the
wrong thing, we suffer guilt and disapprobation. Both, law and
morality channel human behavior.
 H.L.A. HART
• Prof HLA Hart was a legal positivist and a critical moral
philosopher.
• As a legal positivist, he states that it is not necessary
that laws have to necessarily satisfy certain demands of
morality.
• While acknowledging the close relationship that exists
between law and morality, he does not believe them to
be inter-dependant on each other. He states that the
existence of law cannot be judged by its merits or
demerits. A law happens to exist, irrespective of our
likes or dislikes.
• Unlike the other legal positivists, Hart does not deny that
the development of law has been profoundly influenced
by morality.
• Hart acknowledges that law and morals are bound to
intersect at some point.
• Therefore, it becomes necessary to distinguish between
what law is and what law ought to be.
• According to Hart, legal interpreters should display the
truthfulness or veracity about law, by concentrating on
what it says rather than focusing on the aspect on what
one wishes it to be said.
• Hart says that the essence of law consists of two different
kinds of rules, i.e. the primary and secondary rules.
• Primary rules are the duty imposing rules that have legal
sanction which imposes certain duties on the citizens.
• Secondary rules are the power-conferring rules that prescribe
the manner in which the primary rules are to be recognized,
changed and adjudicated. Secondary rules can be said to be
rules about primary rules. Together the primary & secondary
rules form the heart of the legal system.
• And, the principle of justice or the rule of recognition is the
ultimate rule that binds the legal system as a coherent whole
 Fullers Argument
• Fuller stated that law must possess certain characteristics if it is to be classified
as ‘law’ and one of the characteristics is inner morality
• For Fuller if Law contains no morality it is not law
• He also criticized Hart for ignoring the inherent inability of Nazis to be
considered as a legal system
• He then criticizes positivism itself and states that the fundamental positivism
that law must be separate from morality. He considers this postulate incorrect
as it denies the possibility of any bridge between the obligation to obey law
and the moral obligations.
• Fuller considered law to be a collaborative effort to aid in satisfying of
mankind’s common needs with each rule of law having a purpose related to
the realisation of a value of the legal order
• Since purpose and values are closely related a purpose may be considered as a
fact and a standard for judging facts and thereby, removing the dualism
between is and ought.