This paper ventures into the labyrinth of morality and its intricate relationship with jurisprudence - exploring how morality has both shaped the law and, at times, been cast aside by it. Striving for a balanced perspective, it examines the role morality plays in legal theory while confronting a fundamental question: is law a mere human construct, or does it exist as an independent, absolute truth akin to science or mathematics? In this pursuit, the paper interrogates the so-called "Holy Dialect of Law," questioning its perceived autonomy and uncovering the influence morality continues to exert upon it.

Morality:

Morality, though used in daily life, is very hard to define. There is no one go-to, universally agreed meaning of morality and what is moral and what is not. This question throughout time has haunted thinkers, philosophers, and jurists alike.

• Most commonly described as what ought to be and what ought not to be.
• Oxford Dictionary defines it as: "Principles relating to right and wrong or good and bad behaviour."
• The word Morality is derived from a Latin word "moralis" which is categorization of intention, decision, action.
• The term was coined by Cicero, meaning "proper behaviour of person in society".
• These were early standards a person must follow to live in society, fulfilling responsibilities and duties.
• In simplest terms, these were premature laws guiding one's actions in society for the greater good.

Throughout history, with the rise of organized societies and norms, morality has been their bedrock. Socrates believed that virtue (goodness) is inherent in all humans. He famously said:

No one does wrong willingly

• Socrates argued that humans possess an innate quality called Virtue.
• Morality has historically served as the Grundnorm of law in early societies, and continues to influence law today.

Morality was similarly defined by Plato and Aristotle, both disciples of Socrates.

Immanuel Kant proposed the concept of the Categorical Imperative:

Act only on that maxim through which you can at the same time will that it should become a universal law.

• Kant argued that one's actions should be considered universalizable — if you do it, others should be able to do it too.
• Example: If you steal food, you permit others to do the same, leading to chaos and no real ownership.
• Though logical, this framework has limitations in capturing the full essence of morality.

Friedrich Nietzsche critiqued this formal and structured understanding of morality. A commonly misattributed quote illustrates this:

If you crush a cockroach, you're a hero. If you crush a beautiful butterfly, you're a villain. Morals have aesthetic criteria.

• Nietzsche defined morality as: "The herd-instinct in the individual."
• He believed morality arises not from reason, but from a human tendency to conform.
• He criticized Kant's ideas as empty formalism — noble sounding but unrealistic.
• Nietzsche saw morality as complex, tied to human psychology, culture, and region.

Morality in Europe today is herd animal morality, in other words... merely one type of human morality beside which, before which, and after which many other types, above all higher moralities, are, or ought to be, possible.

For Nietzsche, morality was not something very abstract or superficial, but rather very grounded, formed through human conformity, defined as "herd mentality", which is argued in his concept of "Übermensch"-that one needs to transcend such traditional set of morals and make his own morality.

Leading to one of the greatest quotes of all time:
"God is dead," purporting this idea of the death of traditional morality and the rise of individual morality.
Simply defined, morality is one's own guiding principle, depending on his principle, values, belief which may be affected by traditional mentality, dependent on changing time, value, principle, and belief, for what ought to be done and not.

Jurisprudence
Jurisprudence is derived from Latin word meaning "Jurisprudentia" which can be further bifurcated in "juris" meaning law and "prudentia" meaning knowledge. Jurisprudence is knowledge of law.

Alphine defined Jurisprudence as "it is knowledge of thing divine and human, the science of just and unjust"
Cicero who coined the term morality, defined jurisprudence "philosophical aspect of the knowledge of law"
Laski defined it as "Eye of law"

Jurisprudence though it's meaning and definition is closely related with term law and terms associated with it like just, unjust etc. Law if defined loosely is nothing but common sense. Law if defined one of most common definition could be defined as "command of sovereign backed by sanctions" which was given Austin, he believed law is not what ought to be but what it is (as it is). Though this definition is also criticized because it mainly focuses on three things, "command", "sovereign", "sanction". This definition doesn't grasp full picture of what really law is made for, which is justice, as Salmond defines "the body of principles recognized and applied by the state in the administration of justice" he argues law is made to serve justice, it is not there just to give command and if not followed backed by evil consequences or sanctions but also or importantly to serve justice.

Jurisprudence is not term that was coined, but rather a term that evolved through history with different schools. Austin is attributed to one who recognized jurisprudence as science or rather science of positive law. This idea was criticized by Holland who defined jurisprudence as "formal science of positive law", he argued that this idea science of positive law was too rigid and abstract and overlooks how morality is not separate from law, but is also a part of it, if not extensively then at least reasonably to an extent.

He also believed law is what it is, going with the idea of positive law, but where he disagrees is he defined jurisprudence as not just science but formal science. Formal here mean form, he purposes the law in form is similar and is universal or it is what is (law as it is) but the science or logic of it might be different which in parts resonates with David Hume's idea that law is not universal and is product of societal, cultural norms, or as he says himself "In every system of morality… the author proceeds for some time in the ordinary way of reasoning… when of a sudden I am surprised to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not". (Treatise of Human Nature, Book III, Part I, Section I)

Holland argues the same the logic reasoning might be different for a law but the form or structure is similar, to explain in simpler way, imagine you do crime in India, America and Britain, for such crime you will be punished this form or structure of offense precedes justice or punishment is similar rather universal but the punishment, and logic or science behind such may be different. As holland himself puts "The province of jurisprudence is formal, not material; it concerns the definition of legal conceptions, not the enumeration of legal rules."- Thomas Erskine Holland

Key Components of Jurisprudence:

• Source of Law:
  It examines from where and how legal concepts, law, and legal theory originated.
• Legal Concept:
  These are fundamental ideas and jargons like rights, duties, justice, etc.
• Legal Theory:
  These are structured arguments or statements that explain how law works, functions, evolves, and interacts with other social sciences.
  

Role of Morality in Jurisprudence:

The role of morality in jurisprudence depends on the perspective or the school of jurisprudence one refers to. Jurisprudence comprises various schools, each representing different thoughts and ideas.

To understand how different schools provide different answers to the question "What is the role of morality in jurisprudence?", let's delve into one of the main schools:

Natural School of Jurisprudence:

• This is one of the earliest schools of jurisprudence.
• Key thinkers include Heraclitus, Socrates, Zeno, Plato, Cicero, and Aristotle.
• They believed in the concept of morality, virtue, and goodness, arguing that it exists naturally within us.
• In this school, morality played a central role — seen not as a societal construct but as divine in nature.
• Thus, morality is law or is used to make law.
• Law is what ought to be. It exists in an abstract form, as described by Plato in his Allegory of the Cave, presenting the Doctrine of Forms.
• Plato argued that abstract, ideal forms exist independently of the physical world, and what we see is merely a shadow of the truth.
• Aristotle criticized this idea. While he accepted the Doctrine of Forms, he denied that such abstract entities could exist independently of time, space, or the human mind.
• According to Aristotle, everything is an attribute of a sustainable entity — it cannot exist on its own.

The philosophical school of jurisprudence is a subset of the natural school, and one of the aforementioned philosophers, Immanuel Kant, also proposed an idea called Transcendental Idealism, which is similar to Plato's.

Doctrine of Forms

• Kant argued that there are two worlds:
  • The Noumenal World (thing-in-itself), also referred to as the shadow world
  • The Phenomenal World, which is the real, perceivable world
• He stated that whatever we perceive is just an illusion of the Noumenal World, which exists independently of us.
  

Analytical School of Jurisprudence

• This school denies the very idea of morality in law and argues for positive law—law as it is, not what it ought to be.
• Key thinkers include Austin, Bentham, and Holland.
• They argued that:
  • Law is neither bad nor good—law is just law.
  • As Austin put it: "Law is the command of the sovereign backed by sanction."
• Austin is considered the father of English jurisprudence and legal positivism.
• Thinkers of this school viewed law as separate from morality, which is why they critiqued public international law as mere positive morality.
• Morality was not prominent and was mostly rejected in this school.
• However, Bentham included a bit of morality in his theory of utility:
  • His theory was based on the maxim: "Greatest pleasure for the greatest number of people."
  • This maxim acts as a self-imposing limitation on the sovereign's power.
    
  • It follows the idea of utility:
    • "That property in any object, whereby it tends to produce benefit, advantage, pleasure, good, or happiness... or to prevent the happening of mischief, pain, evil, or unhappiness."
  • The idea of utility carries an understated "ought" to it, rather than a strict "is".
    
• Critiques of Bentham's theory include:
  • It undermines morality if the majority decides on something unethical or immoral.
  • Such pleasure for the majority may conflict with justice and equality—the fundamental purposes of law.
• This is also a common critique of Austin's idea of law.
  

Historical School

• This school focuses on how law has historically evolved and transformed.
• It emphasizes the role of custom and morality in shaping law.
• Morals of a society often give birth to societal customs, which may eventually become law.
• Key thinkers:
  • Montesquieu is often attributed as the founder.
  • Von Savigny is the most influential thinker and is called the Father of the Historical School.
• Von Savigny propagated the idea of Volk Geist ("the spirit of the people"), resonating with Rousseau's "general will of the people."
• He argued that:
  • Law cannot be revolutionary; it can only be evolutionary.
  • Law is unconscious, derived and evolved from the will or spirit of the people.
• This links back to the ideas of virtue and goodness promoted by early natural law thinkers like Socrates and Plato.

• Realist School
  
  • The Realist School believed that law made by legislation is nothing more than an idea of a right or law; it becomes law only when judges apply it.
  • Oliver Wendell Holmes Jr. was the founding figure of American Realism. He stated:
    "The life of the law has not been logic; it has been experience."
  • He believed that the law made by Parliament is just law in theory until applied by judges, as they live and breathe the law—they experience it more than anyone else.
  • This school also has an implicit morality beneath it. It argues for law as something experienced through living, which is done by judges through their morality, ethics, and belief systems.
  • Axel Hägerström is the founding father of the Scandinavian School of Realism. He believed that most legal theory or understanding of law was metaphysical and not based on reality.
  • He explicitly stated that law is not a moral command, but a social fact—observed, experienced, and enforced by judges.
  • He argued that concepts like rights, duties, and the state are constructs of humans and do not exist independently of us. This is a nominalist idea, a direct counter to Plato's doctrine of forms.
  • If law is divorced from morality, but its application and enforcement rest in the hands of judges—who are human beings—then morality inevitably re-enters the legal system through the moral consciousness of these judges.
  • Judges are not neutral instruments. They are shaped by human biases, ethical principles, moral frameworks, and social conditioning.
  • A judge cannot make decisions in a moral vacuum. Even the decision to avoid morality is often a moral stance.
  • So, even in a system that claims to be amoral, the actor within the system (the judge) acts morally—whether through values like justice, fairness, or reasonableness—making morality a practical necessity, if not a theoretical one.
    
• Law as Integrity
  
  • Ronald Dworkin's theory argues that law is not just a system of rules but a practice of moral interpretation guided by principles of justice and fairness.
  • He addresses how the law should be interpreted and the role of judges in the legal process.
  • He argues law must be interpreted with integrity, meaning judges must interpret law as part of a coherent and moral legal principle.
  • He argued law is not merely a mechanical application but requires moral judgment.
  • He uses a Chain Novel Analogy, where each interpretation must build upon and be consistent with previous interpretations, as well as with a moral structure—viewing law as a continuous narrative.
  • Dworkin argued that law is morality and that judges must interpret law with moral coherence and principle.
  • He was a major critic of legal positivism, emphasizing the importance of an "ought" over an "is."
  • He gave a donut analogy—while not explicitly his, it's used to explain his view: the donut represents law made in coherence with morality; the hole represents hard cases where law is ambiguous.
  • Even in such hard cases, Dworkin believed a righteous judgment could be found—not through personal experience or belief, but through moral coherence and consistency.
  • John Rawls, in A Theory of Justice, brought political morality into legal discourse, arguing that justice is fairness and laws should align with principles like equality and liberty.

Conclusion
Morality plays a very important role in jurisprudence-from lawmaking to interpretation and everything in between. Morality is undeniably the Grundnorm for the law that is made-the very foundation. Even the very idea of a sovereign being sovereign is not purely analytical; it is a normative belief system.

The sovereign is believed to be sovereign due to custom, or as Hart puts it, due to obedience and continuity. The sovereign-king, dictator, or parliament-is obeyed not because of brute power, but because of socially constructed belief systems like "the king can do no wrong." This belief is normative, not empirical. Such authority stems from a moral-psychological belief, not just force or logic.

The very idea of constructing law as free from morality is itself rooted in a moral choice-a desire for objectivity, clarity, or political neutrality.

Morality in a narrow sense (communal, rigid, dogmatic) has constrained legal thinking, but morality in an open, individualistic sense (reason, justice, human dignity) has shaped legal evolution-from natural law to human rights to Dworkin's integrity. Even the idea of amoral law is born from a moral decision-to exclude morality for some purpose.

Hence, the role of morality can't be overlooked. Law is not an independently existing idea outside of human construct; rather, it is purely a human construct. Unlike mathematics, physics, or science, it is not an absolute truth but a truth made by humans for their tendency to co-exist in society-or at least survive.

Even morality is a construct of ours. These constructs are dependent on humans, so there can be no pure theory of law, nor can there be law without morality, when morality in itself is a premature form of law.

Even to argue that law is purely analytical and logical would be foolish. Law doesn't exist independent of us humans; rather, it's a nominal construct of the human mind. Law doesn't exist outside human consciousness and mental construct; one can even say law is nothing but nonsense made by humans to survive. Throughout history and the evolution of law, jurisprudence a lot of jurists like Austin, Kelsen, and others have argued that law is pure logic-that it exists as it is.

To argue for such an idea doesn't make sense, and none of us can imagine the existence of law, for example-can you imagine BNS Section 41 existing independently?
Well, one can argue Section 41 is nominal in naming, just like numbers: quantity exists independently, but their sound, symbol, and expression are nominal-and the same can be argued for law. This argument would be true, but such reasoning loses ground when morality is taken out of the picture. And also, when thought about deeply-does morality exist without human construct? Are we kind and helpful or are we because raised in such a society, so are we truly kind?

Carl Jung famously said, "As far as we can discern, the sole purpose of human existence is to kindle a light in the darkness of mere being." He argued that humans are optimistic and grow-which indeed is true. If we don't change or adapt, we won't survive. It is a long-embedded evolutionary fear within us.

Morality is the response to our survival and the societal beingness that we are. Morality makes our life easier than it would be without it. I believe this is how major jurists who propounded the idea of the social contract theory would put this. They would say morality is the very social contract upon which every other social contracts are made.

To sum up, you can understand gravity even if Newton never did. You can propagate the theory of quantum mechanics, but you can't tell what Section 41 of BNS says. You can make a law true, but to say your Section 41 would be the exact same as Section 41 of BNS would be illogical and irrational. Yes, such a section could be similar in jest but not exact-or how Holland says, similar in structure or form-but not in science.
Morality is not naturally existing; it is a construct that acts as the very foundation for the very law we make and follow today.

Reference:

• Oxford Dictionary Definition of Morality
  Oxford University Press. (n.d.). Morality. In Oxford English Dictionary. Retrieved from https://www.oed.com
• Cicero – Origin of "moralis"
  Cicero, M. T. (c. 44 BC). De Officiis.
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  Kant, I. (1785). Groundwork of the Metaphysics of Morals (trans. Mary Gregor). Cambridge University Press, 1998.
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  Nietzsche, F. (1887). On the Genealogy of Morality (trans. Carol Diethe). Cambridge University Press, 2007.
• Nietzsche – "God is Dead"
  Nietzsche, F. (1882). The Gay Science (trans. Walter Kaufmann). Vintage Books, 1974.
• Hume – "Is-Ought Problem"
  Hume, D. (1739). A Treatise of Human Nature, Book III, Part I, Section I. (Oxford University Press edition).
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  Holland, T. E. (1880). The Elements of Jurisprudence. Oxford University Press.
• Bentham – Utilitarianism
  Bentham, J. (1789). An Introduction to the Principles of Morals and Legislation. Dover Publications, 2007.
• Plato – Doctrine of Forms & Allegory of the Cave
  Plato. (c. 380 BC). The Republic (Book VII). Trans. Allan Bloom. Basic Books, 1968.
• Aristotle – Critique of Plato's Forms
  Aristotle. (c. 350 BC). Metaphysics (trans. W.D. Ross). In The Basic Works of Aristotle, ed. Richard McKeon. Modern Library, 2001.
• Kant – Transcendental Idealism
  Kant, I. (1781). Critique of Pure Reason (trans. Paul Guyer and Allen Wood). Cambridge University Press, 1998.
• Cicero – Jurisprudence as Philosophy of Law
  Cicero, M. T. (c. 51 BC). De Legibus.
• Dosad, Mukesh – Understanding Ambiguity in Statutory Language
  Dosad, Mukesh. Understanding Ambiguity in Statutory Language and Its Impact on Judicial Interpretation (October 15, 2024). Available at SSRN: https://ssrn.com/abstract=5033910 or http://dx.doi.org/10.2139/ssrn.5033910
• Dworkin – Law's Empire
  Dworkin, R. (1986). Law's Empire. Harvard University Press.
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• Mukesh Dosad – The Dual Nature of Mathematical Reality
  The Dual Nature of Mathematical Reality: Between Independence and Human Construct
  https://www.linkedin.com/pulse/dual-nature-mathematical-reality-between-independence-mukesh-dosad-fiv7f

Written By: Mukesh Dosad
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