ASSIGNMENT ON

PERRINIAL DEBATE OF LAW AND MORALITY

SUBJECT: - JURISPRUDENCE

SUBMITED TO: SUBMITTED BY:

DR. PRAYAS DANSANA CHANDRA SEKHAR MISHRA

ASSISTANT PROFESSOR 2nd SEMESTER

POST GRADUATION

(DEPARTMENT OF LAW)

SAMBALPUR UNIVERSITY JYOTI VIHAR, BURLA

1. INTRODUCTION
2. LAW AND MORALITY
3. A DISTINCTION DRAWN IN POST-REFORMATION EUROPE
4. FOUR STAGES IN THE DEVELOPMENT OF THE LAW WITH RESPECT
TO MORALITY
5. DIFFERENT SCHOOLS OF LAW AND MORALITY
6. HART-FULLER DEBATE ON LAW AND MORALITY
7. DISTINCTION BETWEEN LAW AND MORALS
8. THE INTERACTION BETWEEN LAW AND MORALITY IN
CONTEMPORARY LEGAL SYSTEMS
9. CHALLENGES IN LEGAL DECISION-MAKING
10.CONCLUSION: LAW AND MORALITY UNDER JURISPRUDENCE
11.BIBLIOGRAPHY
INTRODUCTION

The relationship between law and morality has never been terribly clear in the American mind. On
one hand, there has been the attempt simply to identify the two. On the other hand, there has existed
a deep suspicion of all attempts to relate the two.

Traditional Western jurisprudence, at least before Austin, tried to follow a middle course between
these two extremes. Law is infinitely more than procedural technique; but it is something less than
a religion or an ethical system. Law presupposes an ethical system and attempts to maintain and
promote that system in the concrete lives of citizens. Law is, above all else, a teacher. This essential
core of a legal system often is forgotten, to the confusion and detriment of that system. "Morality"
is only slightly less difficult to define than "law." We know, however, there is an intimate and
inextricable relationship between the two. It is like defining the relationship between church and
state: the relationship is clear and the balancing delicate; if one is absorbed in the other, the result
is tyranny, or superstition, or both. One cannot be absorbed by the other and if it is, we have neither
church nor state.' The relationship of law and morals, similarly, is one of tandem and tension. Both
law and morals concern who and what man is, that is, human existence. Although wolves do not
argue about the merit of running in packs, man always argues about, and seeks to define, his
existence. It is this very quest that defines man as human. Man is free, therefore he is responsible
and moral; man relates to others in community, therefore he needs law whereby his freedom and
his relationships can be channeled for their maximization.2 Freedom and law are both a possibility
and a limit. That is what the medieval schoolmen meant when they said that man achieves his
highest freedom only under law; homo liber et legalis.3 Without law, man falls into the confusion
of anarchy or into the tyranny of the stronger.1

LAW AND MORALITY:

Ever since law has been recognized as an effective instrument of social ordering there has been an
ongoing debate on its relationship with morality. According to Paton, morals or ethics is a study
of the supreme good. In general, morality has been defined to include: all manner of rules,
standards, principles or norms by which men regulate, guide and control their relationships with
themselves and with others. Both, law and morality, have a common origin. In fact, morals gave

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rise to laws. The State put its own sanction behind moral rules and enforced them. These rules
were given the name law. In the words of Hart The law of every modern State shows at a thousand
points the influence of both the accepted social morality and wider moral ideal. Both, law and
morality have a common object or end in so far as both of them direct the actions of men in such
a way as to produce maximum social and individual good. Both, law and morality are backed by
social or external sanction. Bentham said that legislation has the same center with morals, but it
has not the same circumference. Morality is generally the basis of law, i.e. illegal (murder, theft,
etc.) is also immoral. But there are many immoral acts such as sexual relationship between two
unmarried adults, hard-heartedness, ingratitude, etc. which are immoral but are not illegal.
Similarly, there may be laws which are not based upon morals and some of them may be even
opposed to morals, e.g. laws on technical matters, traffic laws, etc. Morals as test of law: several
jurists have observed that law must conform to morals, and the law which does not conform to
morals must be disobeyed and the government which makes such law should be overthrown.
Paton said that if the law lags behind popular standard, it falls into dispute, if the legal standards
are too high; there are great difficulties of enforcement. Morals as end of law: According to some
jurists, the purpose of the law is do justice. Paton said that justice is the end of law. In its popular
sense, the word ‘justice’ is based on morals. Thus, such morals being part of justice become end
of justice. The end which the preamble of our constitution tries to achieve is the morals.2

A DISTINCTION DRAWN IN 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 18th 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

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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 a change in 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 as the 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.

India: As observed earlier, the ancient Hindu jurists did not make any distinction between law and
morals. Later on, in actual practice some distinction started to be observed. The Mimansa made a
distinction between obligatory and recommendatory rules. By the time the commentaries were
written the distinction was clearly established in theory also. The Commentators pointed out the
distinction and in many cases dropped those rules which were based purely on morals. The doctrine
of ‘factum valet’ was recognised which means that an act which is in contravention of some moral
injunction, if accomplished in fact, should be considered valid. However, this rule does not apply
to legal injunctions. In modern times, the Privy Council in its decision always made a distinction
between legal and moral injunctions. Now there is no longer any confusion between law and
morals and when the law is gradually being codified, there are little chances of such confusion.3

FOUR STAGES IN THE DEVELOPMENT OF THE LAW WITH RESPECT

There are four stages that are described by Prof. Roscoe Pound in the development of the law with
respect to morality.

1. Morals as a basis of law

2. Morals as test of law

3. Morals as end of law

4. Morality as part of law

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HOW IS MORALITY THE BASIS OF LAW?

As we discussed above that, there has never been a solid division created between morality and
law throughout history. Due to a lack of distinction, all laws originated from what members of a
community believed to be morally right. The state eventually adopted what was ethically just and
gave it the shape of laws, rules, and regulations. As a result, law and morality are two notions that
are similar in that they both derive from the ideals that are prevalent among people. For instance,
raping or killing someone is morally wrong. This principle has been formalised into law.

HOW IS THE MORALITY TEST OF LAW?

Let’s see how morality tests the law. The entire purpose of having laws is to uphold justice in
society and act in a way that is best for everyone’s well-being. Any law that violates moral
principles needs to be repealed, and the morality of law can be assessed by considering whether it
is consistent with moral principles. There shouldn’t be any conflict between law and morality,
according to many jurists, because the principle of fairness falls squarely within the purview of
morality.

HOW ARE MORALS AS END OF LAW?

The goal of the law is to uphold justice, which is heavily founded on morality. In most languages
used across the world, words are used to convey the concepts of justice and morality as well.
morality is dharma.

HOW IS MORALITY PART OF LAW?

It is said that morality is somehow an essential component of law or the formation of the law, even
though law and morals can be distinguished from one another. According to some, the law is more
than just a set of rules; it also makes use of certain principles. Although it is acknowledged that
this does not allow the rules themselves to be rejected on the grounds of their morality, the skillful
application of these principles to legal norms causes the judicial process to extract a moral element
out of the legal order. Even the positivist admits that morality can and often does work against the
creation of a legal rule.
DIFFERENT SCHOOLS OF LAW AND MORALITY

NATURAL SCHOOL

• Aristotle View

Aristotle, a Greek philosopher, contributed significantly to the development of natural law theory.
According to his perspective, there is an inherent order and purpose in the natural world. This
concept extends to human beings and society. Aristotle believed that human beings have a “telos”
or a natural end or purpose, and living in accordance with this purpose leads to the fulfillment of
human potential and happiness. In the context of law and morality, Aristotle argued that just as
natural objects have characteristic properties and functions, human beings too have a nature that
determines what is good for them. He believed that laws should be crafted in a way that aligns
with human nature and promotes human flourishing. For example, promoting virtues such as
courage, wisdom, and justice through laws would lead to a harmonious and just society.4

• Thomas Aquinas’ Contribution:

Thomas Aquinas, a medieval theologian and philosopher, further developed the natural law theory
in a Christian context. He synthesized Aristotle’s ideas with Christian theology, emphasizing the
connection between natural law and divine law. Aquinas identified four primary precepts of natural
law: to preserve life, to reproduce, to educate the young, and to live in society. These precepts, he
argued, were based on human nature and essential for the common good and human flourishing.
Aquinas’ influence on natural law theory has been profound, and his ideas continue to shape moral
and legal philosophy.

ANALYTICAL SCHOOL

• Jeremy Bentham’s Ideas:

Jeremy Bentham, an influential English philosopher and legal theorist of the 18th and 19th
centuries, was a key figure in the development of legal positivism. Bentham believed that the law
should be based on empirical observation and a scientific approach to social organization. He
emphasized the need for utilitarianism, the principle that laws should aim to maximize overall

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happiness or pleasure for the greatest number of people. Bentham argued that law and morality are
distinct and separate concepts. He believed that laws are created by human authorities and derive
their legitimacy from the state’s power, not from moral considerations. According to Bentham,
morality is subjective and varies among individuals, while law should be a matter of objective
rules that can be analyzed and applied in a consistent manner

• John Austin’s Positivist Approach:

John Austin, a legal philosopher of the 19th century, further developed legal positivism based on
the idea that law is a command issued by a recognized political authority. He posited that laws are
essentially orders backed by the threat of sanctions or punishments. For Austin, there is no
necessary connection between law and morality; a law could be unjust or immoral but still be
considered valid if it emanates from a legitimate political authority. Austin’s approach helped
solidify the separation between law and morality within legal positivism. He focused on the
empirical study of legal systems and the analysis of legal concepts, emphasizing the importance
of understanding law as it is, rather than as it ought to be based on moral principles.

Legal positivists, including Bentham and Austin, advocate for a clear separation between law and
morality. Legal positivists criticize the natural law approach for blending law and morality, as they
believe it could lead to uncertainty and subjectivity in legal decision-making.

Overall, the historical perspectives on law and morality, represented by natural law theory and
legal positivism, present different viewpoints on the relationship between law and morality.
Natural law theory posits a connection between the two, where laws should reflect moral principles
derived from human nature and reason, while legal positivism emphasizes the separation of law
from morality, treating law as a social construct that is valid regardless of its moral content.

HART-FULLER DEBATE ON LAW AND MORALITY

The Hart-Fuller debate is one of the most interesting exchanges of ideas and opinions between Lon
Fuller and H. L. A Hart on the intriguing interdependency between law and morality. This was
published in the Harvard Law Review in 1958 and essentially highlighted the difference in
opinions in the positivist and natural law philosophy. To understand the points put forth by both
these ideologists, it is important to analyze their beliefs and the reasoning behind them separately.5

H. L. A HART

Hart is a positivist and is thereby of the opinion that while there may be a close relationship
between law and morality, the two are most definitely not interdependent. That being said, Hart
does believe that law has been heavily influenced by the morals that prevail within the society.
According to him, a clear distinction needs to be made between what law should be and what it
ought to be. This is where Hart brought in the problem of penumbra which refers to determining
meaning where the law is ambiguous. Fuller in opposition to this stated that in situations where
the law is uncertain, the judges make decisions based on morality, basically from what ought to
be. To this Hart responded by saying that determining what ought to be must be understood from
a legal sense, and not from a moral one. Essentially, interpretation of the law cannot come from
outside of the legal world.

The law has primary rules and secondary rules. Primary rules impose certain regulations on the
citizens and secondary rules provide power to the state to make and implement these rules. This
means that the law doesn’t have to align with moral standards. Despite making a clear demarcation
between law and morality, he also believes that the two are bound to intersect at some point.

LON FULLER

Fuller is a naturalist who believed that there exists a strong necessary connection between law and
morals. According to him, all legal norms are based on moral norms. In simplest terms, no law can
be deemed as valid if it does not pass the test of morality which is based on ethical ideas that people
have. Fuller has further categorized morality into two aspects; Morality of aspiration and morality
of duty. The former is concerned with moral norms that are followed by a person for their
individual best interest. The latter on the other hand is more relevant to the smooth functioning of
society by prescribing standards that all people must follow. Fuller also elaborated on two concepts
which are “Internal morality of law” which deals with the procedure of framing laws and “External
morality of law” which is more about the essence of law which is used to make decisions.

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Analysis of Hart-Fuller debate

Both these legal philosophers aimed at achieving justice but their way of achieving it was different.
Their ideologies can be better understood with the help of real-life examples. Let’s say the law
says that it is prohibited to park a vehicle in a particular place. Now parking your vehicle in that
place is obviously not morally wrong, but is still against the law. This means that law can exist
exclusive of any moral obligation of interference or dependence which is what has been established
by Hart.

On the other hand, let’s take a look at the Nazi regime when the laws enacted by Hitler were devoid
of concepts of morals and ethics. The Nazi regime, we would all agree, was unfair and cruel to
humanity, and the result of that was not justice. When laws were not in conformity with morals, it
led to injustice and that, in a nutshell, is Fuller’s opinion.

Upon careful examination of their opinions, it can be understood that the ideas of the two
philosophers can definitely be met halfway. Morality and law don’t need to be two far-fetched
ideas and can have a certain amount of overlap between them. However, the legal world will have
to prevail over what people might believe since morality is subjective.6

DISTINCTION BETWEEN LAW AND MORALS

It has been repeatedly observed in the preceding paragraphs that in modern times there is a clear
distinction between law and morals in every developed and civilized society.

Now the points of distinction between the two shall be discussed as:

a. The morals are concerned with the individual and lay down rule for the moulding of his
character. Law concentrates mainly on the society and lays down rules concerning the
relationships of individuals with each other and with the state.

b. Morals look to the instrinsic value of conduct or in other words, they look into motive. Law
is concerned with the conduct of the individual for which it lays down standards.

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 c. The morals are an end in themselves. They should be followed because they are good in
themselves. Law is for the purpose of convenience and expediency, and its chief aim is to
help a smooth running of the society.

d. The observance of morals is a matter of individual conscience. Law brings into picture the
complete machinery of the state where the individual submits himself to the will of the
organised society and is bound to follow its rules.

e. The morals are considered to be of universal value. Law is relative-related to the time and
place, and, therefore, it varies from society to society.

f. Law and morals, again, differ in their application. The morals are applied taking into
consideration the individual cases whereas the application of law is uniform.

Roscoe Pound therefore, says that:

As to application of moral principles and legal precepts respectively, it is said that 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.

THE INTERACTION BETWEEN LAW AND MORALITY IN CONTEMPORARY

A. Criminal Law and Morality

The criminalization of certain behaviors often reflects society’s moral values. Issues such as
abortion, euthanasia, and drug use highlight the tension between moral beliefs and legal regulation.
Examining how lawmakers navigate these contentious issues sheds light on the role of morality in
shaping criminal law.

B. Same-Sex Marriage and LGBT Rights

The recognition of same-sex marriage and the extension of rights to the LGBT community
illustrate how societal shifts in moral values can lead to legal changes. This intersection showcases
how evolving moral standards can impact legislation and judicial decisions.

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C. Assisted Reproductive Technologies

Advancements in reproductive technologies have led to ethical dilemmas and legal challenges
surrounding issues like surrogacy, embryo research, and genetic modification. The development
of laws in this area reflects society’s moral considerations.

CHALLENGES IN LEGAL DECISION-MAKING

A. Cultural Relativism:

One of the challenges of incorporating morality into law is cultural relativism. Different societies
have diverse moral beliefs, making it difficult to establish a universal moral framework that can
guide legal systems. As societies become more interconnected, legal pluralism and the clash of
moral values across cultures present complex challenges for the harmonization of international
law.

B. Judicial Discretion:

In judicial decision-making, judges may encounter cases where the law conflicts with their
personal moral convictions. Balancing their moral values with the legal principles they are bound
to uphold can be a challenging task, raising concerns about judicial impartiality and the risk of
subjective judgments.

CONCLUSION: LAW AND MORALITY UNDER JURISPRUDENCE

The relationship between law and morality is multifaceted and continually evolving. While legal
positivists argue for a strict separation of law from morality, natural law theorists insist on a strong
connection. Nevertheless, historical and contemporary evidence reveals that morality has a
significant influence on legal systems, and law, in turn, can shape societal moral norms. Modern
debates continue to explore the role of morality in lawmaking and legal interpretation. In
contemporary legal systems, issues like criminal law, marriage rights, and reproductive
technologies highlight the influence of moral values on legislation and judicial decisions.
Addressing challenges such as cultural relativism and judicial activism is crucial in maintaining a
just and balanced legal system that respects both the rule of law and individual morality. Striking
this delicate balance ensures that law remains a reflection of societal values while upholding the
principles of justice and fairness.

Navigating the interplay between law and morality is an ongoing challenge for legal practitioners
and scholars. Understanding and acknowledging the dynamic relationship between these two
domains is crucial for the development of just and equitable legal systems that align with societal
values and promote the greater good. As societies evolve and encounter new ethical dilemmas,
jurisprudence will continue to be at the forefront of these discussions, seeking to strike a delicate
balance between law and morality.

BIBLIOGRAPHY

https://blog.ipleaders.in/all-about-law-and-morality/#Philosophical_alternatives

https://www.legalserviceindia.com/legal/article-1888-law-and-morality-in-the-light-of-
jurisprudence.html

https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1093&context=sulr

https://www.lawnotes4u.in/what-is-law-and-morality-in-jurisprudence/

https://sociallawstoday.com/law-and-morality-under-jurisprudence/