Relation between Law and Morality
Introduction
“When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law.”
-Frederic Bastiat-
Prior to the emergence of modern democratic governments, man had developed a way of life that suited his social order and was not complicated but had a simple set of rules and ethics. At the height of civilization, law was developed as a subject around the world, especially by Greek philosophers, including Aristotle, who developed the law on a philosophical background. Then the question arose as to whether the conditions which had hitherto existed as morals of good and bad opinions were thus excluded.
Moreover, since the law operates not in the physical realm of the road but in the context of the name of society, law cannot refute the moral concepts that are rooted in society. The law, on the other hand, was developing up to that point and the question arose as to how far society would accept the exclusion of morality based on rational ideas.
Regarding these issues, some in society argued that there was a closer relationship between law and morality, while others argued that law was an abstraction from morality. Accordingly, the school of law is being created in the society and this article is expected to consider the relationship between law and morality by examining the ideas of the school of natural law and the school of positivism.
What is Law?
Law is not something that can be taken literally and interpreted. As Father Noel Dias wrote in his book International Comparative and Human Rights Law, “the number of interpretations of law is about the same as that of any other jurist in the world.” That is to say, the complex matter of understanding the law is the interpretation of the law, even if it leads to a more complex interpretation.
In applying the word morality, the school of natural law interpreted law in relation to morality as well. Based on the concept of jus naturale on natural rights and natural justice, they discussed what should be the law rather than what the law is. They argued that law should not be simply understood but should be understood in terms of religion, morality, rights, justice, justice, and conscience.
But positivism defined law as emphasizing the fact that law is only subject to our experience. There is no connection between law and morality. The law is the coming of the Sovereign that can be enforced through punishment. John Austin proposed the concept of the command of the sovereign, declaring the law to be completely immoral. Whether that orders is moral or not, it must be upheld, and the reason for that is the imposition of that law by a powerful sovereign. In the interpretation of what is meant by law as above, the application of morality can be identified under two parts.
How Morality relates to Law
- During the middle Ages, European law developed under the influence of the Christian Church. Hence it was referred to as the law of God or lex aeterna. If there is a law that is just and unethical according to the divine law, it is not a law. The law could not be discussed without a moral and religious background, especially since the issue of religion was intertwined with the law. For example, abortion cannot be legalized because it would be immoral to end another’s life. This can still be seen today and abortion has not yet been legalized under Sri Lankan law and has been identified as a criminal offense.
- Furthermore, in the study of legal sources in modern times, there are instances where morality is considered as a source of law. For example, the issue of polygamy has been morally and socially problematic, and the law is currently being enacted to ban it. Moral issues in religions have also become laws today. In Buddhism, for example, stealing is a vicious act that is immoral according to religion. This has now become a punishable offense in the Penal Code. Article 378 of the Indian Penal Code and Article 366 of the Sri Lankan Penal Code bear witness to this fact.
- A government makes laws to raise the moral standards of the people. That is, the purpose of the law is to legitimize society by following the proper rules, and the law does not seek to intimidate man by punishing him or to turn man into an artificial person before the law. For example, in India as well as in Sri Lanka, religious freedom is recognized under the Constitution and special laws pertaining to each religious sect are recognized. This is made clear in Articles 25 and 26 of the Constitution of India and Article 16 (1) of the Constitution of Sri Lanka. That is to say, the Constitution is the supreme document of the country, but it can also be said that it does not seek to exclude moral issues. William W. van Einstein’s article the relationship between law and morality while respecting constitutional law states that the Constitution respects the relationship between law and morality.
- Morality addresses the conscience of man. Accordingly, it is questionable to what extent the conscience will comply with the law when it perceives that it is unjust. The enactment of the law must therefore be examined from a moral point of view. Mahatma Gandhi did this as follows: “An unjust law is itself a species of violence. Arrest for its breach is more so. Now the law of nonviolence says that violence should be resisted not by counter-violence but by nonviolence. This I do by breaking the law and by peacefully submitting to arrest and imprisonment. ”
- Morality is also found in the field of international law. Examples include the development of customary international law, Jus cogens and erga omnes. Conservatives like John Austin argue that international law is not a law because international law is based on morality. But international law is evolving day by day based on morality.
How can Morality be Unrelated to Law?
- The main argument that there is no relationship between law and morality is the difference in the way in which this duality is born. According to John Austin, morality is created as a general idea of people in society. So there is no difference between the people who create morality and the people who practice it. But law is created from a place called autonomy and can be an individual, even a group of people. For example, the supreme law-making body in India is the bicameral legislature.
- There is a clear difference between the consequences of breaking the law and breaking the morals. Violation of the law is punishable by corporal punishment. For example, the offense of murder is punishable by life imprisonment under Section 302 of the Indian Penal Code while section 296 of the Sri Lankan penal code demonstrated the same. But does not impose a mandatory corporal punishment on those who violate morals, and applies to matters of social exclusion or conscience.
- The law is a situation that can be clearly seen. Legal positivism the law recognizes only what can be clearly identified by experience. In terms of marriage law, there are several specific statutes in India such as Special Marriage Act of 1954 and the Hindu Marriage Act of 1955. But when it comes to the moral aspects of marriage, there are a number of moral issues that vary over time, region, religion, and so on, and they are often unambiguous, just as a matter of practice.
- According to Austin, morality has the power to impose limits, but law cannot. Restricting the law in some way is an indication that there are laws that are above the power of the sovereign. But the law is above morality and there may be times when morality is limited by law. For example, it is wrong to take a person’s life for religious or moral reasons. But it was also recognized that a person has the right to go with dignity in accordance with the provisions of the Constitution, and the Common Cause vs Union of India (2018) case went beyond moral issues and affirmed the concept of passive euthanasia.
A critical analysis of the relationship between law and morality
“When moral are sufficient, law is unnecessary, when morals are insufficient, law is unenforceable.”
-Emile Durkheim-
Whatever the views of the various schools of jurisprudence on the relationship between law and morality, it is clear that law and morality are applicable at different levels in practical application. That is, when there is a time when moral matters have to be applied to a law, morality also applies to that occasion.
That is, all of the above can be countered with in a practical society. That is, the law cannot be definitively divided as to when it is morally detached. This is also because law is evolving as sociology. It is clear that whether the law is based on morality or not, it performs the maximum process for the social progress of reaching the main purpose of the law.
Those who obey the law sometimes say that the law should be associated with morality, and sometimes obey the law without such an argument. For example, the spread of the covid 19 virus led to the imposition of travel laws in each state, which prevented many religious festivals from being celebrated as such. But people respected the law and could not say that it was out of fear of punishment. In any case, it fulfills the purpose of social progress. Natural lawyers do not have to obey an unjust law. But it is questionable whether the public was asked whether these laws were fair or unfair.
According to Professor Roscoe Found, law is a tool of social engineering. That is, according to the school of sociological jurisprudence, the law must change to suit society. Based on that concept, many states have created new legal concepts, some of which are related to morality and some are not.
However, in modern society, society is nurtured by law and law is nurtured by society. Therefore, morality is more or less relevant to law. Sometimes it has to be ignored if it is an impediment to progressive law in the analysis of moral matters. For example, on September 6, 2018, a landmark judgment (Navtej Singh Johar v. Union of India, Minister of Law and Justice. [2018] INSC 746) confirming the rights of homosexuals was issued, stating that “love is love itself.”
There are religious and moral criticisms in this regard, but the court enforced a historic legal status for social progress and justice. In Sri Lanka, too, discussions are under way to amend the Muslim Marriage and Divorce Act, No. 13 of 1951, to the minimum age for marriage. We need to be more careful in making these matters into law, which are sensitive issues that are intertwined with morality.
The above discussion confirms that the relationship between law and morality is not clear but is an important aspect of law. According to Aristotle, “Man is the most intelligent animal in the world, but man is the most animal in the world when separated by law and justice.” The law, therefore, must be for maximum justice, whether or not it relates to morality.
“If the law lags behind popular standard, it falls into disrepute; if the legal standards are too high, there are great difficulties of enforcement.”
-Paton-
Therefore, it can be argued in the end that it is the aspiration of the people to do justice better by using as much as necessary of moral matters to create and maintain a more pro-people law.
Author: Tharuka Hettiarachchi,
Faculty of Law, University of Colombo, Sri Lanka