Author is Senior lecturer at KCEF Law College Pulwama
Lessons From The Law
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 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.
Morals as the test of law:
It has been contended by a number of jurists, since very early times, that law must conform to morals. This view was supported by the Greeks and the Romans. In Rome, law to some extent, was made to conform to ‘natural law’ which was based on certain moral principles and as a result ‘jus civil’ was transformed into ‘jusgentium’.
Most of the ancient jurists expressed their views in a spirit of compromise and attached sanctity to legal rules and institutions. They said that law, even if it is not in conformity with morals, is valid and binding. During the Dark Ages, Christian Fathers preached forcefully that law conform to Christian morals and said that any law against it is invalid. In the 17th and the 18th centuries, when the ‘natural law’ theory (which was based on certain morals) was at its highest, it was contended that law (positive law) must conform to natural law.
They said that any law which does not conform to natural law is to be disobeyed and the government which makes such law should be overthrown. It was this theory which inspired the French Revolution.
In modern times, such views that law must conform to morals and if it is not in conformity with morals, it is not valid and binding are no longer heard. However, in practice to a great extent law conforms to morals.
