In this article, the author examines whether there occurs a role for law in
moral matters and traces the interrelation of law and morality through ancient
The popular concept of the connection between law and morality is that in
some way the law exists to promote morality, to preserve those conditions which
make the moral life possible, and then to enable men to lead sober and
The average man regards law as justice systematized, and
justice itself as a somewhat confusion of moral principles. The researcher
through this article intends to portray the relation between Law and Morality
during in the contemporary context.
In order to reach the conclusion i.e. to
form a relation between the two, the researcher would like to give a brief
overview of these two aspects in the introduction, then go on to explain the
nexus between these two.
Law is influenced from and has base of both religion
and morality and hence their takes place a sought of interaction between the
legal system and the moral faculty of our society. The researcher would analyze
critically the thoughts about both these terms.
Law is defined in many ways; however the two main definitions can be described
as natural law and legal positivism. Natural law is the view that laws are valid
when they are in line with a certain higher authority over man; this can be God
(according to Aquinas) or even a shared morality amongst society (Lon fuller).
Whereas legal positivism is the view that a law is only valid if it is made by
the right practice for the state creating the law (e.g. laws passed through
parliament) it does not matter if we even like these laws, just as long as they
are made using the right process (Austin).
Morality on the other hand is determined by the will of humans rather than the
law itself, it is a set of standards we have set ourselves to decide what is
morally right or wrong. Morality is similar to law, but laws and customs
(morality) must both be obeyed.
Although we can see there are cases of both the
law reflecting morality and the law not reflecting certain moral judgments, we
still need to ask whether it is required of the law to reflect morality. Laws
aim at the smooth functioning of society.
This is not always based upon how fair
the law is, though some of the most efficient laws are the fairest. Morality has
been an integrated part of law as part III and part IV of Indian Constitution
and also supports it but Modern legal positivist approach regards it outdated
and negative and I found, today Law can be identified without reference to
morality except where law accepts the moral criteria for creating it.
individual’s conscience and values of a society the morality comes and appears,
therefore, what morality means to me, may not be to you. It is very difficult to
create a law when there is conflict of opinion and morality always differs from
individual to individual, however, morality cannot be always on the back of
every statute. If something is immoral does not uncertainly makes it illegal and
vice versa. This makes difference between the two.
Relationship Between Law And Morality
However, law and morality these terms were synonyms at one point of time but in
modern age, both the terms have important independent meaning which can be found
in the respective sphere. Law is a code of rules and regulations governing human
It consists of positive and negative directions imposed by sovereign.
As it is a coercive in nature, therefore, every one falling under its territory,
bound to follow these sets of rules. Relation between law and morality can be
traced in these two ways:
- The former concept was, Morality as basis of law.
- The present concept is, Morality as basis of law where law acknowledges
the morality for making it.
Morality generally means rules governing human behavior
or sometimes one’s
personal views about a thing or activity which should not be imposed upon others
as these are not enforceable. Earlier law was purely based on morals and values.
When state came into existence, the society opted for those rules and values
which were important from its point and put its own sanction behind it. These
norms were known as law.
The rules made for good of the individual and which
were not observed continuously by the state in its real term called morals.
However, law and morality have same institution but by the time, they deviated
in the course of its development. Many rules are mutual for both law and
morality like robbery, murder; theft and decoity are some of the acts, against
law as well as morality.
Though, it cannot be said that morals are the basis of
legal rules. It can be said that usually law has some base of morals but law and
morality can be described separately in the contemporary world. There are
various things, which may be immoral but not necessarily illegal like cheating
on your friend or spouse, breaking promises (for certain sets of people) and
which may be illegal but not necessarily immoral like drinking under age,
abortion (for certain sets of people). Take issue of live-in relationships,
which already has a moral ban on it.
My view is that when two major individuals
with their free consent decide to live together, where the question of violation
of moral standards arises. There is no violation of moral standards and no
intervention by law. Following are other issues like prostitution, homosexuality
which are in conflict to decide morality and law; therefore, morality cannot be
legislated and as it depends upon the wishes of the individual except under
The purpose of law is not to make the laws of the land
ineffective but to maintain law and order in the country. If someone violates
these minimum standards, then punishment is remedy. Accordingly, morality has
got recognition but it does not mean that all the legal rules are based on
morals. There are certain legal rules which are not based on morality. Some of
the examples are vicarious liability, principle of Absolute liability.
Distinction Between Law And Morality
In modern times, there is a difference between law and morality. Roscoe Pound
as to application of moral and legal percepts respectively, it is
said that moral principles are of individual and relative application; they must
be implemented in reference to situation and individuals, whereas legal rules
are of general and absolute application
The morality depends upon the will
or conscience of the individual. An act moral for one person may be immoral for
other and morals may mould the character of an individual. One of the best
examples can be taken of marriage in Hindus and Muslims.
Only one marriage is
considered as sacred and bigamy is a sin in Hindus and in Muslims, they are
allowed to marry four women at one point of time. Law ensures consistency to the
code of behavioral law and it is essential as it cannot completely ignore the
ethical and moral aspects. If there are laws, not up to the standards of ethical
behavior, such laws cannot survive in contemporary India. India is a sensitive
country in terms of ethics like where riots take place even on very small
Today, most of the times law is neglecting the moral principle for decisions by
courts. Law believes in evidences and proofs rather than morals. I believe that
in earlier days morality was the sole basis of law and now it is one of the
bases for incorporating law.
If already a person believes in one act and later
on, state comes with a law making it binding, that law will become morally
justified law for that person because he was already a admirer of that behavior
but it will be difficult for those, who will acknowledge it, only after came
into being as binding. It may prove troublesome for those people but they will
have to follow the rules.
Such sort of situation should be curtailed from the
society, because it equates the law and morality at same footing, which in
reality are different. It is argued by some scholars that nothing is legal
unless it passes a test of morality.
This proposition is not agreed by me
because it is not necessary that every law should be backed by morality, every
law has its own pros and cons and even in order to have beneficial impact on
society, law need not to pass the test of morality except under exceptional
In the end, I would like to conclude that the law and morality are separate.
Today, legislations have to take care of the other aspects touching the need of
the society while making the law, which are beneficial for the society in some
way. But the reality, on the other hand is different which conveys that still
the culture of creating law on the basis of morality prevails but only at the
places, where law directly accepts the moral criteria for its making and nowhere
Morality is no more remained as a backbone of law in its strict sense. It
can only be state while concluding that the level of enforcement of moral
standards depends upon case to case. A hard jacket formula cannot be applied by
the law to enforce the morality and the degree of enforcement of moral
principles depends upon each cases and circumstances.
If the effect of morality
is injurious on the society, then such sort of morality should not be
legislated. One of the best examples is Valentine’s Day, it is considered
immoral under Indian Society as can be seen from the acts of Shiv Sena, such
acts should not be legislated in any situated. The novel India must reflect in
the law of the land or statutes and it is taking place as can be seen from
permitting of homosexuality, permitting euthanasia etc. Further, as morals
differ from person to person the restrictions imposed on the laws of obscenity
must be exercised liberally.
To bring some positive changes in the life of
people every system of law must be created and should not restrict itself to the
morals so as to have negative impacts for many. Generally, in the form of
justice, good faith, equity and conscience, morality has inserted into law and
legislature has to be cautious at the time of incorporating law because an act
or stipulation cannot be inserted into statutes, which is completely against the
morals of the society but in the court of law, when it comes to technicalities,
often morals disappear.
Further, law and morality can be similar when morality
and public notion is same and law and morality cannot be similar when morality
and public notion is in engagement. Public opinion and morality cannot be same
if seen in terms of each and every individual.
Modern age has given importance
on the morals rather than law because ultimately, law is like last resort in
which people live with the fear in their mind and due to which they follow the
same but according to me, if you have intention to obey something because of
morals, then you will do that with your own wish and will and that is better
than living under apprehension.
Law sets some rules and regulations keeping in
mind the relation of an individual with the state and each other, but the
reality is different, it does not maintain the wishes and wills of each and
every individual of the state. Every person has its own different morals and
they want to be governed by those morals.
Written By: Nehal Pharande, LL.M
- Available at
- Available at W.Friedman,Legal Theory,5th edi.,4th Indian Reprint.