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• Law And Morality Under Jurisprudence
• by Social Laws Today
• July 22, 2023
• 14 minutes read
• 9 months ago

Neha Jain a 2nd Year Law student at Mumbai University has written this article explaining Law And Morality Under Jurisprudence

Table of Contents

Introduction

Jurisprudence is the field of philosophy that scrutinizes the nature, purpose, and principles of law. One of its central themes is the interaction between law and morality, which has been a subject of deep inquiry for centuries. Scholars, philosophers, and legal practitioners have grappled with questions about whether law can exist independently of morality, or if legal systems should be grounded in moral values.

This article aims to shed light on this thought-provoking topic by exploring how morality shapes legal systems and how law, in turn, influences societal moral norms. It will also address the challenges faced by legal theorists and practitioners as they navigate the intricate relationship between law and morality.

What is Law?

Law can be defined as a system of rules and regulations that are created and enforced by a governing authority to regulate the behavior and interactions of individuals and groups within a society. It serves as a framework that establishes rights, duties, and obligations for individuals, ensuring order, fairness, and justice in a community. The primary functions of law include resolving conflicts, maintaining social order, protecting individual rights and property, and promoting the overall welfare of society. Laws are intended to apply to all individuals within a particular jurisdiction, regardless of their status, ethnicity, religion, or social standing.

Laws are designed to provide stability and consistency in society by setting out clear and predictable rules for behavior. They are subject to change through formal legislative processes or judicial decisions when necessary. Laws are generally created to serve the public interest and promote the welfare and safety of society as a whole. law is an essential tool for maintaining social order and promoting justice within a society. By providing a framework for interactions and resolving disputes, it helps to establish a stable and harmonious environment for individuals and communities to coexist.

What is Morality?

Morality refers to the principles, values, and beliefs that guide human behavior and decision-making, distinguishing actions as right or wrong, good or bad, virtuous or immoral. It is a fundamental aspect of human nature and influences the way individuals interact with others and make choices in various aspects of life. Morality is a subjective concept, meaning it can vary among individuals, cultures, and societies. Different people and groups may hold distinct moral beliefs and ethical frameworks. Morality carries a normative dimension, suggesting what “ought” to be done or what is morally desirable. It serves as a guide for ethical behavior and serves to promote actions that are deemed morally good. Consequentialist theories, like utilitarianism, focus on the outcomes or consequences of actions to determine their moral worth. Actions that produce the greatest overall good or happiness are considered morally right.

Importance of understanding their relationship

Law and morals are integral systems that govern individual behaviour within society. Laws, being established rules and regulations sanctioned by authority, carry a compulsory nature, requiring adherence. Conversely, morals represent behavioural standards that individuals are encouraged to uphold voluntarily to promote peaceful coexistence and social acceptability. Although distinct, the relationship between law and morals has evolved over time.

In antiquity, law and morality were often perceived as synonymous. As societies progressed, a clearer distinction emerged, emphasizing their unique characteristics while acknowledging their interdependence. Laws, as formal legal constructs, hold coercive power, backed by enforcement mechanisms, to ensure compliance. On the other hand, morals, rooted in personal and societal values, guide conduct through individual choice, without the force of compulsion.

However, the distinction between law and morals is essential. While laws may aim to uphold societal morals, they occasionally face moral scrutiny. Conversely, adhering to morals can lead to non-compliance with certain laws, raising ethical dilemmas for individuals. Law and morals are distinct yet intertwined systems governing individual conduct within society. Laws possess a compulsory nature, deriving authority from governing bodies, while morals are voluntary behavioral standards founded on personal and societal values. Throughout history, laws have been influenced by moral considerations, shaping legal systems that align with prevailing ethical norms.

Nevertheless, as legal systems evolve, the relationship between law and morals remains complex, demanding ongoing examination to strike a harmonious balance that promotes justice, societal welfare, and individual freedoms. The connection between morality and the law is complex and has changed over time. Initially, the two were thought to be equivalent, but with time and advancement, it has become clear that they are actually two distinct notions with some interdependence.

The relationship between law and morality is a complex and multifaceted one, and it has been a subject of intense debate and philosophical inquiry for centuries. This relationship can be understood in various ways, and different legal and moral theories offer distinct perspectives on how these two domains interact. Some key aspects of the relationship between law and morality include:

• Influence of Morality on Law: Throughout history, moral values have played a significant role in shaping legal systems and laws. Many laws are derived from and reflect prevailing moral norms and societal values. For example, laws prohibiting murder, theft, and fraud are rooted in shared moral principles that prioritize the protection of life, property, and honesty. Moral considerations can drive legal reforms, prompting the creation of new laws or amendments to existing ones to align with evolving ethical standards.
• Legal Enforcement of Moral Values: In some cases, laws are explicitly enacted to enforce specific moral values or social objectives. For instance, laws that promote social equality, protect vulnerable groups, or prohibit discrimination are often influenced by moral imperatives to uphold justice and fairness in society. Legal systems can be instrumental in promoting and enforcing moral standards.
• Moral Limits on Law: While moral values may influence laws, there are instances where legal norms may conflict with widely accepted moral principles. In such situations, individuals and legal practitioners may face moral dilemmas, navigating between adhering to the law and adhering to their personal moral convictions. For example, laws that discriminate against certain groups or restrict individual freedoms may be perceived as morally unjust and spark debates about the legitimacy of such laws.
• Cultural and Historical Context: The relationship between law and morality can vary based on cultural, religious, and historical contexts. Different societies may have diverse moral beliefs, leading to varying legal frameworks. Cultural relativism recognizes that moral values can be culturally contingent and suggests that legal systems should respect these differences.
• Legal Positivism vs. Natural Law: Legal theories like legal positivism argue for the separation of law from morality, asserting that laws derive their validity solely from their source of authority and not from their moral content. On the other hand, natural law theories propose a more intrinsic connection between law and morality, suggesting that laws should be grounded in universal moral principles.

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.

• 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 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.

The Hart-Fuller Debate

The Hart-Fuller debate on law and morality is a pivotal discussion in jurisprudence, the study of legal theory and philosophy. The debate centers on the relationship between law and morality and whether there is an intrinsic connection between the two or if they should be considered as separate domains. Let’s delve deeper into their respective positions:

• H.L.A. Hart’s Legal Positivism: H.L.A. Hart, a prominent legal philosopher and proponent of legal positivism, argued that there is a clear separation between law and morality. According to Hart’s view, the existence and validity of law are determined by social facts rather than moral considerations. He identified law as a social phenomenon, established by a union of primary and secondary rules and recognized by officials and citizens within a legal system. Hart believed that the validity of law should be understood from an “internal point of view,” meaning that legal rules are valid if they are generally accepted and followed by those within the legal system. He rejected any necessary connection between law and morality, asserting that a law can be valid even if it is morally unjust or does not align with moral principles. For Hart, the primary focus in understanding the law lies in analyzing its structure and the ways it is created, applied, and adjudicated.
• Lon L. Fuller’s Morality of Law: Lon L. Fuller, in contrast, presented a more moral and substantive view of law. He argued that there is an inherent connection between law and morality and that a legal system must fulfill certain moral principles to be considered legitimate. Fuller introduced the concept of the “inner morality of law,” which suggests that a legal system must adhere to certain principles for it to be just and valid. Fuller identified eight principles that a legal system should embody, such as generality, publicity, consistency, and providing guidance for conduct. He contended that a legal system that fails to fulfill these principles would be deficient and might not deserve to be called a legitimate legal system. Fuller’s approach emphasized the importance of moral content in law and the significance of considering the ethical implications of legal rules and decisions.
• The Debate: The Hart-Fuller debate significantly impacted the study of jurisprudence and legal philosophy. It brought to the forefront questions about the nature of law, its legitimacy, and the relationship between law and morality. The Hart-Fuller debate can be summarized as a clash between legal positivism (represented by Hart) and a more moral and substantive view of law (represented by Fuller). Hart argued that the validity of law lies in its recognition within a legal system, regardless of its moral content. He emphasized the importance of a clear and consistent legal framework. On the other hand, Fuller argued that the moral content and internal coherence of laws are essential for a legal system to be legitimate. He criticized the idea that any set of rules, no matter how unjust or immoral, could be considered a legitimate legal system. Overall, the Hart-Fuller debate remains relevant to contemporary jurisprudential discussions, reminding scholars and practitioners to consider the complex interplay between law and morality when examining legal systems and their normative foundations.

The Interaction between Law and Morality in Contemporary Legal Systems

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.

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

• John Austin (1832) “The Province of Jurisprudence Determined” .H. L. A. Hart (1961) “The Concept of Law”.
• Lon L. Fuller (1964) “The Morality of Law”.
• Websites: Law And Morality Under Jurisprudence
• https://www.lawnotes4u.in/what-is-law-and-moralit-in-jurisprudence/#What_say_different_schools_about_the_law_and_morality
• https://lawcorner.in/law-and-morality-in-jurisprudence/

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1 Relationships Between Law and Morality

• Published: March 2019
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This chapter distinguishes three types of inquiry about law. It articulates the two conceptual views about morality and the nature of law that comprise the focus of this volume. First, the chapter explains positivist and anti-positivist views with respect to whether it is a conceptual truth that the criteria of legal validity include moral constraints on the content of law. It then turns to the dispute between inclusive and exclusive positivists with respect to whether it is conceptually possible for a legal system to have content-based moral criteria of validity. Finally, this chapter argues that the claim that conceptual jurisprudence should not be done is either unclear or false.

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Law And Morality In Jurisprudence

Introduction.

For living peacefully in a society an individual follows various norms, conducts, values, rules, beliefs, etc. which tell how a person should behave in a society. It becomes important to create the difference between them in order to avoid ambiguity and conflict. One such deliberate effort is always taken when distinguishing between law and morality. These are such concepts which on some parts seem inter-related while in some other parts seem completely different concepts. Many Jurists debated on the same issue of law and morality in Jurisprudence and as a result, various views arose on the topic.

Black’s Law Dictionary says that law is “A body of rules of action or conduct prescribed by controlling authority and having binding legal force. That which must be obeyed and followed by citizens subject to sanctions or legal consequence is a law.” [1]

In simple words, the law is a bunch of rules and regulations formed by the authority(legislature) and enforced by the executive body which has legal sanctity. And which the citizens are obliged to follow in order to avoid the legal consequences.

Morality in simple words is the principles, values, beliefs and behaviour created and carried forward by the society. They do not have legal sanctity but bind a person to societal obligations or are dependent upon the conscience of the individual.

Example- Going to the temple and praying to God is morality but is not a legal sanction.

Many of the legislations are devoid of morality while there are also many legislations which along with law have morality as the base element. For example- a Live-in relationship is legal but is not in consensus with morality. Whereas, the law against human trafficking has morality as its element.

Law and Morality in Jurisprudence

Law and morals are the systems which govern the behaviour of individuals in society. Laws are rules and regulations which are sanctioned by the authority and are compulsory to follow. While morals are the standards of behaviour that individuals should follow in order to live peacefully with acceptability but they are not compulsory like law. These two concepts have a complex relationship which has evolved over time. In ancient times, law and morality were seen as similar concepts but with time and development, it has been clarified that these two are different but interdependent concepts.

History of Law and Morality

Because of their budding stage, law and morals were not properly distinguished during ancient times. Dharma in India was regarded as the Law and morality. Taking the example of Hindu Law which was primarily derived from the Vedas and smritis, which were actually the values of people. They signified the identicality between law and morals. However, with the advent of Mimansa and commentaries, certain principles were put forth based on which distinction was made between the obligatory rules and the recommendatory rules. The former are the rules which are mandatory to be followed and are considered law whereas the latter ones are not mandatory rules but they are considered good for the person if they are followed, they are the morals.

In the middle age period, the morals of Christianity were considered as the basis of law and the Bible had great influence over the legal regulations.

Relationship between Law and Morality

1. Moral as the origin of law

In ancient times there was no clear distinction between law and morality . And due to this lack of distinction, the origin of every law was found in the principles which people thought as morally correct. In the end, the state selected those morally correct principles and made them into laws, thus forming similarities between law and morality . For example, It is morally wrong to commit theft or robbery, the state gave this moral, the form of law. Even though the distinction between law and morals has been put forth but morals form an integral part of the law. Most of the laws have some or the other principles of morality.

2. Moral as the test of law

Many Jurists are of the opinion that those laws which do not follow morality must be removed, as the end purpose of every law is to impart justice and ensure the welfare of the people.

While making any law it always has to be seen that, whether it is in consonance with moral values or not, if it doesn’t follow the moral standards it should be removed.

3. Morality as the end of the law

Laws were made to serve the purpose of creating a society having the elements of fairness, justice and equality. Laws were made for the purpose of providing justice to a person who suffered from something wrong. And on the other hand, morality provided certain standards to sustain some order in society with fewer conflicts. In other words, the object of morality is to remove conflicts from society. Thus we can see, that the main object of law and morality is the same making both the concepts related to each other.

Difference between Law and Morality

Although we can see law and Morality in some aspects as interdependent and also identical concepts. But there are some factors which differentiate these two.

1. It is the external source from which the law is obtained, in simple words law is derived from the rules and regulations, whereas morality is derived from the individual’s inner self (internal source) i.e. the individual mind of the person.

2. Laws are focused upon the individual’s conduct for which it entrusts certain standards whereas morality is concerned with the innate values of the conduct in other words it is focused upon the motive.

3. Laws don’t change from person to person, it treats everyone the same, whereas morality is a subjective concept, it differs for every person based on their conscience.

4. Laws are influenced by morality, which means they are created by taking morals into consideration. Morality, on the other hand, existed way before the laws were formulated.

5. There is punishment for the disobedience of law but in morality, there is no such punishment for anything done which is wrong morally.

6. Laws are mandatory to be followed as laid down by the sovereign for the people governed by it. However, morality is rather a personal concept it doesn’t lay down certain mandatory conduct have to be followed.

7. Laws control the behaviour of a person legally whereas morals control the behaviour of a person morally.

Philosophies Regarding Law and Morality

The evolution of law was aided by two broad theories of legal positivism ( analytical school ) and natural law theory.

The natural law theory states that any law which is unjust and hence infringes the principle of morality, cannot be considered as law. In this theory, it is inferred that the laws and morality are deeply interconnected. Natural law gives the idea that Morality in human beings is derived from nature which took the form of rules and regulations. The Central idea behind natural law is that it embodies moral principles which depend upon the nature of the universe and which can be discovered for natural reasons. Jurists who aided this theory of natural law were Augustine , Thomas Aquinas , Lon Fuller, John Locke and many more.

Legal positivism states that legal entities sans morality. The theory does not deny the impact of morals on laws but says that the laws are created by men and hence should have a clear distinction from morality. It emphasises that laws and morality are two different concepts and laws are the result of sovereign power and not morality. Theorists in support of legal positivism were John Austin and H.L.A Hart.

Debate between Hart and Fuller

Hart accepted the law as a command. He emphasised the separation of positive law from morality. He believed that judicial decisions are to be deduced from the pre-determined rules without recourse to social aims, policies and morality. Rational arguments cannot defend moral judgements.

According to Hart, the law is a system having two types of rules providing key to the science of Jurisprudence. These rules are Primary Rules and Secondary Rules. Primary rules impose duties whereas Secondary Rules give power and the essence of law is in the union of these two rules.

Primary rules are binding as they impose a duty upon the individuals whereas Secondary Rules being power conferring, empowers the legislators to formulate or modify policies according to the needs of the society.

Lon Fuller criticized his views of Hart on the separation of law and morality. He believed the legal system is made for regulating the conduct of human beings and therefore it must have in law the element of “it is” and “it ought to be”. In other words, it means that law and morality cannot be divorced from each other. Fuller maintained that law is a product of sustained purpose and efforts which contains its own implicit morality. He believes that law cannot fully serve its purpose of imparting justice and preventing misery if they do not conform to the “internal morality”. According to Fuller, eight conditions forming the internal morality are-

• Law should be general
• It should be publicly promulgated
• Laws should be prospective in nature (they should apply to future behaviour, not to the past).
• Laws should be clear and intelligible
• There should be no contradiction between laws
• It should be constant
• There must be the possibility to obey the law
• The law should be administered in a way that should not diverge from its obvious and apparent meaning.

These eight principles were highly criticized by Hart. According to him, these principles are the means of efficiency and are not defining morality.

Analysis of the Debate

Looking at the thoughts of both these theorists we can say that their object was to achieve justice and order but their ways were different. There are elements which contributes to the formation of law, therefore the matter cannot be simply put as the relationship between law and morals, as so many factors influence law, and one of them is moral.

In some aspects of law, we find the element of morality while in some laws morality does not play many parts for eg, legalising of abortion. We can say that in certain laws, the need for perfectly differentiating between the law and morality has to be identified while in some laws the difference between the law and morality can be set aside and certain overlapping between them can be allowed. But it is always the legal idea which prevails over subjective morality.

Dudley and Stephens Case [2]

In this case, the principles of law and morality were distinguished while punishing the grave offence of cannibalism. According to the facts of the case, the accused were the sea men. Their ship capsized in a storm they along with a boy, about seventeen years of age managed to float on a wooden plank. They continued to drift for many days without food and drinking water. When the death of starvation and thirst was imminent, they killed the boy and continued to eat his flesh for a few days until they were rescued. On being prosecuted for murder, they pleaded that self-preservation was the utmost necessity and they had no option except to kill the boy.

Judgement of the court

The court held that in order to save his own life a person cannot sacrifice another person’s life. And in this case, there was no such evidence which could justify their killing of the boy and hence they were guilty of murder. Although it was considered morally justifiable, for saving the life of all of them their action cannot be legally justified. One cannot kill another person for overcoming the inconvenience of attempting to save his life and claim it justifiable.

Law has heterogeneous properties it contains various elements which contribute to making better law and among these, morality is one the element. In ancient times morality and laws were considered similar concepts but with the development of time, these two concepts were separated and discussed properly. Debates between the theorists lead to the formation of different views regarding the relations as well as the distinction between law and morality. By analysing these two concepts we find that morals in some aspects have an effect on the laws but they do not override the legal entity as morality is subjective.

[1] Black’s Law Dictionary, 6 th ed., s.v. “law”.

[2] Dudley and Stephens (1884) 14 QBD 273.

[3] Studies in Jurisprudence and legal theory, Dr. V.N Paranjape.

[4] https://www.lawteacher.net/free-law-essays/jurisprudence/legal-positivism.php#:~:text=In%20the%20legal%20positivists%20point,cease%20to%20be%20legal%20rules.

[5] https://legalstudymaterial.com/relationship-between-law-and-morality/#Relationship_between_law_and_morality.

[6] https://www.grin.com/document/1038415.

This article has been written by Simran Kingrani, 3rd Year B.A LL.B Student at the University College of Law, MSU

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3.2 Differences between law and morality

Behaviour which is commonly regarded as immoral is often also illegal. However, legal and moral principles can be distinguished from each other. For instance, parking on a double yellow line is illegal but not commonly regarded as immoral.

Law and Morality

• First Online: 14 December 2016

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• Willy Moka-Mubelo 4  

Part of the book series: Philosophy and Politics - Critical Explorations ((PPCE,volume 3))

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Law and morality are two normative systems that control and regulate behaviors in a human community so as to allow harmonious and effective intersubjectivity between individuals who recognize one another as bearers of rights. Both notions have their common foundation in the concept of individual autonomy and equal respect for everyone. They have a complementary relationship. Law compensates for the functional weaknesses of morality and morality tempers the mechanical implementation of positive law through the notions of solidarity and responsibility. Different legal thinkers have interpreted the relationship between law and morality in different ways. On the one hand, there are those who argue that law and morality are independent – though not unrelated. For this first group, a law cannot be disregarded merely because it is morally indefensible. On the other hand, there are those who maintain that law and morality are interdependent. For this second group, any law that claims to regulate behavioral expectations must be in harmony with moral norms. Approached from this perspective, the law must be enacted in such a way that it secures the welfare of the individual and the good of the community. Thus, the aim of all laws should be both the attainment of the end of the state and the common good of the community, both immediate and ultimate. For Habermas, law and morality deal with the same problem: legitimately ordering interpersonal relationships through justified norms.

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John Christman, “Autonomy in Moral and Political Philosophy,” in Stanford Encyclopedia of Philosophy , http://plato.stanford.edu/entries/autonomy-moral/ consulted on Thursday, January 8, 2015.

Andrea Westlund, “Rethinking Relational Autonomy,” in Hypatia , vol. 24, Issue 4 (Fall 2009): 35.

Westlund, “Rethinking Relational Autonomy,” 40.

Christman, “Autonomy in Moral and Political Philosophy.”

Charles Taylor, “The Politics of Recognition,” in Amy Gutmann (ed.), Multiculturalism: Examining the Politics of Recognition (Princeton: Princeton University Press, 1994), 28.

Habermas, “Introduction to the Seminar on Jürgen Habermas’s Discourse Theory,” Ratio Juris , vol. 12, no. 4 (December 1999): 330.

Charles E. Curran, The Development of Moral Theology (Washington DC: Georgetown University Press, 2013), 74.

Michael Bertram Crowe, The Changing Profile of the Natural Law , cited by Alex E. Wallin, “John Finnis’s Natural Law Theory and a Critique of the Incommensurable Nature of Basic Goods,” in Campbell Law Review , vol. 35, no. 1 (Fall 2012): 60.

Legal dictionary, http://legal-dictionary.thefreedictionary.com/Natural+Law (Accessed, January 16, 2015).

Daniel Chernilo, The Natural Law Foundations of Modern Social Theory: A Quest for Universalism (Cambridge: Cambridge University Press, 2013), 74.

Costa Douzinas, The End of Human Rights (Oxford: Hart Publishing, 2000), 15.

Robert P. George, “Natural Law,” in Harvard Journal of Law and Public Policy , vol. 31, no. 1 (Winter 2008): 172.

John Finnis, Natural Law and Natural Rights (New York: Oxford University Press, 2011), 280.

Finnis, “Natural Law and Legal Reasoning,” in Robert P. George, ed., Natural Law Theory: Contemporary Essays (New York: Oxford University Press, 1992): 135–6.

Joseph Boyle, “Natural Law and the Ethics of Traditions”, in Robert P. George, Natural Law Theory: Contemporary Essays , 4.

Michael D.A. Freeman, Lloyd’s Introduction to Jurisprudence , cited by Alex E. Wallin, “John Finnis’s Natural Law Theory and a Critique of the Incommensurable Nature of Basic Goods,” in Campbell Law Review , vol. 35, no. 1 (Fall 2012): 62.

William O. Einwechter, Nature Law: A summary and Critique, http://darashpress.com/articles/natural-law-summary-and-critique (Accessed on December 22, 2014).

Finnis, Natural Law and Natural Rights , 35–36.

Jean-Pierre Torrell, Saint Thomas Aquinas, vol. 1: The Person and His Work , cited by Stephen J. Loughlin, Aquinas’ Summa Theologiae: A Reader’s guide (London: T&T Clark International, 2010), 209.

Jacques Maritain, Natural Law: Reflections on Theory and Practice , ed., William Sweet (Indiana: St. Augustine’s Press, 2001), 43.

Finnis, Natural Law and Natural Rights , 28.

Robert Alexy, The Argument from Injustice: A Reply to Legal Positivism (Oxford: Oxford University Press, 2002), 3.

Robert Alexy, “On the Concept and Nature of Law.” In Ratio Jurist , vol. 21, no. 3, (September 2008): 285.

Alexy, “Law, Morality, and the Existence of Human Rights,” in Ratio Juris , vol. 25, no. 1 (March 2012): 3.

Matthew H. Kramer, Where Law and Morality Meet (Oxford: Oxford University Press, 2004), 3.

Michael Giudice, “The Regular Practice of Morality in Law,” in Ratio Juris , vol. 21, no. 1 (March 2008): 95.

Andrei Marmor, “The Separation Thesis and the Limits of Interpretation,” in Canadian Journal of Law and Jurisprudence , vol. XII, no. 1 (January 1999): 135.

Alexy, “The Dual Nature of Law,” in Ratio Juris , vol. 23, no. 2, (June 2010): 175.

Joseph Raz, The Authority of Law , 2nd ed. (Oxford: Oxford University Press, 2009), 38.

Alexy, “The Dual Nature of Law,” 176.

Alexy, “The Dual Nature of Law,” 177.

Ronald Dworkin, Taking Right Seriously , cited by Raymond A. Bellioti, Justifying Law: The Debate over Foundations, Goals, and Methods (Philadelphia: Temple University Press, 1992), 75.

Daniel Chernilo, “Jurgen Habermas: Modern Social Theory as Postmetaphysical Natural Law,” http://www.academia.edu/2638851/Jurgen_Habermas_social_theory_as_postmetaphysical_natural_law (Accessed on February 2, 2015).

Daniel Chernilo, The Natural Law Foundations of Modern Social Theory , 15.

Daniel Chernilo, The Natural Law Foundations of Modern Social Theory , 16.

Habermas, “Law and Morality,” 220.

Peter Bal, “Discourse Ethics and Human Rights in Criminal Procedure,” in Philosophy and Social Criticism , vol. 20, no. 4 (1994): 73.

Habermas, “Law and Morality,” 219.

Ibid., 223.

Bal, “Discourse Ethics and Human Rights in Criminal Procedure,” 73.

Habermas, “Law and Morality,” 226.

Andrew Edgar, The Philosophy of Habermas (Montreal: McGill-Queen’s University Press, 2005), 250.

I.O, 214–5.

Habermas, “Law and Morality,” 252.

Ibid., 264.

Ibid., 261.

Habermas, “Law and Morality,” 266.

I.O., xxxv.

Ibid., xxxv–xxxvi.

John Paul II, Sollicitudo rei Socialis , #38.

Ibid., 195.

Thomas McCarthy, Introduction to MCCA, vii.

Thomas McCarthy, “Kantian Constructivism: Rawls and Habermas in Dialogue,” in Ethics , vol. 105, no. 1 (October 1994): 45.

MCCA, 203–4.

Ingram, Habermas: Introduction and Analysis , 123.

Ingram, Habermas: Introduction and Analysis , 125.

William Rehg, “Discourse Ethics,” in Barbara Fultner (ed.), Jürgen Habermas: Key Concepts (Durham: Acumen Publishing Limited, 2011), 123.

I.O, Introduction, xii.

Habermas, “The Concept of Human Dignity,” 84.

Ibid., 452.

Ibid., 451.

Thomas Aquinas, Summa Theologia , I–II, Q. 94, a. 2.

Ibid., 106.

Jürgen Habermas, “Law and Morality,”

Tony Honoré, “The Necessary Connection Between Law and Morality,” in Oxford Journal of Legal Studies , vol. 22, no. 3 (2002): 494.

Kramer, Where Law and Morality Meet , 117.

Exclusive positivism states that moral considerations must be excluded from the concept of law. As Didier Mineur notes, Raz contends that determining what the law is does not necessarily, or conceptually, depend on moral or other evaluative considerations about what the law ought to be in the relevant circumstances (Didier Mineur, “The Moral Foundation of Law and the Ethos of Liberal Democracies,” in Ratio Juris , vol. 25, no. 2, June 2012, p. 140). In line with Mineur, Michael Giudice notes that on Raz’s account it is never a condition of validity or existence of law that moral standards or considerations are satisfied. The existence and content of law always depend on what the official of the legal system actually practice as law (Micheal Giudice, “The Regular Practice of Morality in Law,” in Ratio Juris , vol. 21, no. 1, March 2008, p. 95).

Michael Giudice, “The Regular Practice of Morality in Law,” 99.

Honoré, “The Necessary Connection Between Law and Morality,” 494.

Habermas, “Law and Morality,” 259.

Ibid., 267.

Habermas, “Law and Morality,” 267.

Habermas, “Introduction to the Seminar on Jurgen Habermas’s Discourse Theory,” 331.

Ibid., 452–3.

Habermas, “Law and Morality,” 245–6.

Didier Mineur, “The Moral Foundation of Law and the Ethos of Liberal Democracies,” in Ratio Juris , vol. 25, no. 2 (June 2012): 142.

Alexy, “The Dual Nature of Law,” 168.

Ibid., 171.

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Bickenbach, “Law and Morality,” 295.

Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978), 223.

William Rehg, “Discourse Ethics,” 120.

Rehg, “Discourse Ethics,” 120.

Rehg, “Discourse Ethics,” 121.

I.O, Editors’ introduction, xii.

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Moka-Mubelo, W. (2017). Law and Morality. In: Reconciling Law and Morality in Human Rights Discourse. Philosophy and Politics - Critical Explorations, vol 3. Springer, Cham. https://doi.org/10.1007/978-3-319-49496-8_3

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First of all, let’s establish why this debate is so important today, more than 50 years after it took place. Its importance lies in the fact that it focuses on one of the most fundamental issues within a democratic society. Should the criminal law be limited, as Mill and Hart argued, by the harm principle, which holds that criminal law is only justified when preventing one citizen from violating the rights of another citizen, or should criminal law be able to be used to enforce any important moral conviction of the community, even if that targeted conduct was not in any way harmful to others?

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Law is a Moral Practice

Scott Hershovitz, Law is a Moral Practice , Harvard University Press, 2023, 236pp., $39.95 (hbk), ISBN 9780674258556.

Reviewed by Brian Leiter, University of Chicago

In the first chapter of his often entertaining but rather exasperating book, Scott Hershovitz gives two different formulations of its central thesis that “law is a moral practice.” In one formulation, “legal practices—like legislation and adjudication—are the sorts of activities that might , in the right circumstances, rearrange people’s moral relationships. That is what I mean when I say that law is a moral practice” (28, emphasis added; cf. 132). This view, however, is trivially true: all kinds of practices (not just legal ones) “might, in the right circumstances” change our moral relationships with each other. (If my neighbor regularly leaves garbage on my lawn, this will change our moral relationship, e.g., I will be morally justified in bringing a civil action against him, and I will no longer have an obligation to be neighborly towards him.)

In other places, he states the thesis differently: “law is a moral practice, in that it aims to adjust our moral relationships” (36, emphasis added; cf. 103) or, similarly, “When I say that law is a moral practice, I mean that we employ legal practices in an effort to adjust who owes what to whom” (24, emphasis added; cf. 96) (morality, for Hershovitz, concerns “what we owe each other” (21), by which he means the moral realist thesis “what we genuinely owe each other, not what we believe we owe each other” (22)); or, “legal practices are tools for adjusting our moral relationships, and they  are typically employed for the purpose of doing so” (18, emphasis added). This latter view does not seem trivial, nor is it (contrary to Hershovitz (27)) one everyone in jurisprudence accepts (Hershovitz cites only Joseph Raz in the text—who may accept it on one understanding—but he makes no mention in this regard of any of the major figures of 20th century jurisprudence like H.L.A Hart, Hans Kelsen, Norberto Bobbio, and Alf Ross who do not accept it). In what sense, though, does the law “aim” or have as its “purpose” the altering of moral relationships?

On a natural reading, Hershovitz seems to mean that legal actors typically intend to alter moral relationships through the law, but this seems implausible. An alteration in moral relationships might be an effect of legal actions, but where is the evidence that it is the typical intention? On the standard public choice account of legislation, for example, law makers intend only to satisfy the interests of their largest donors who make their campaigns for reelection possible. On one kind of Marxist account, law makers intend to promote the interests of the ruling class. Although there is plentiful evidence for both the latter accounts (Hershovitz seems to think, without explanation or evidence, that such possibilities are “deviant” (28)), one need not accept them to still be skeptical of the claim that legal actors typically intend to alter moral relationships.

Perhaps, for example, people employ law primarily for self-interested reasons (to get what they want, without any regard for moral relationships)? Again, adjusting the moral rights and obligations may be a consequence, but not the reason (or motive), for employing law. The Tax Cuts and Jobs Act of 2017 was intended to cut taxes (for self-interested or other reasons), but its proponents would be astonished to learn that their actual intention was to change moral relationships, even if the effect of the Act can be redescribed in those terms. They have no de dicto intention to change moral relationships, even if, by Hershovitz’s lights, we can ascribe to them a de re intention to do so. But as with the first formulation in terms of possible effects in the right circumstances on moral relationships, this interpretation now seems to make the claim, once again, trivial: once you define morality the way Hershovitz does, it follows that any law (or any other activity) which changes people’s rights or obligations has a “moral” effect (or can be described as “moral”), even when no one de dicto intends that (Hershowitz finally admits as much at 192). This makes law a “moral practice” in the same sense that Mafia protection rackets are “moral practices”: they certainly change people’s rights and obligations. [1]

The tautological character of the book’s central thesis plays a large role. For example, it is true on this reading that “the questions posed in court are moral questions as well as legal questions” (38). The problem is they are answered legally, not morally, at least when the law is determinate. When it is not, of course moral considerations may affect a court’s decision in a particular case, but no one has ever denied that latter point. Dworkin advanced the view that one must always rely on moral considerations to say what the law is, and it seems Hershovtiz does too: “judges must rely on their moral views to resolve the cases that come before them” (56, emphasis added; cf. 175: “moral assessment is internal to legal judgment”), i.e., not just in cases where the law runs out.

His main argument for this latter claim appears in Chapter 2 and is based on a reading of a U.S. Supreme Court case, King v. Burwell (2016), involving interpretation of the Affordable Care Act. Hershovitz observes that the late Justice Antonin Scalia offered normative arguments for textualism as a theory of statutory interpretation in his extra-judicial writings, primarily based on the rule of law value of “publicity” (and fair notice) and the constitutional requirement of separation of powers between the judiciary and the legislature. Hershovitz seizes (63–64) on some language at the end of Chief Justice Roberts’ majority opinion, and Justice Scalia’s dissent, in Burwell to suggest that their disagreement was really a moral one, “over competing visions of democracy and the proper role of judges within one” (65). In fact, most of both opinions concerned the meaning of the statute, with Scalia laser-focused on one word in one sentence, while Roberts argued that Scalia’s reading would render the statute self-defeating given the other parts of the text. Even if we take the concluding remarks in the opinion as evidence of the more ambitious moral debate, as Hershovitz does, this does not show “judges must rely on their moral views to resolve the cases that come before them” (56). It may only show that Burwell , like many cases that end up in the Supreme Court (cf. Leiter 2015), had no right legal answer, so unsurprisingly the judges had to exercise moral and political judgment to resolve it.

Chapter 3 is Hershovitz’s most explicit attack on legal positivism, “the thesis that the content of the law is determined by social facts” (84). [2]   Hershovitz claims that “positivism. . .is false when it comes to the set of norms that is contested in court” because “courts attempt to ascertain and apply the norms that are authoritative. . .[i.e.,] in virtue of moral principles that establish their authority” (85). The latter is obviously false (courts purport to rely on the norms that are legally valid), although I suppose Hershovitz thinks Chapter 2 established it. It may be true that in some decisions by the appellate courts, where law is often indeterminate, judges avert to non-legal considerations, moral or otherwise. This shows nothing about what most courts do most of the time, and nothing about the nature of law. (Recall that one of Hart’s central claims was that law exists primarily outside the courts, as a way of guiding conduct; his was not a theory about appellate adjudication, but like Ronald Dworkin, Hershovitz does not notice.)

Hershovitz wants to deny that law is “a set of norms” in Chapter 3, but his reasons are obscure. He notices that the word “law” is polysemous (see esp. 93), and thus can pick out different sets of norms (one might add: it can also pick out things other than norms, e.g., laws of nature). He offers a list of possibilities, suggesting that Hart offers an account of law as “norms that are accepted by legal officials,” but not of “norms that are authoritative” (82), where “authoritative” means those we “have reason to comply with” (74, cf. 86). Hart’s actual theory—namely that where law exists there is a rule of recognition that specifies the criteria other norms must satisfy to count as norms of the legal system, and the criteria making up the rule of recognition are those that officials converge upon and treat as ones they ought to apply (i.e., that they treat as authoritative, rightly or wrongly)—is not fairly represented on Hershovitz’s list of possibilities. To use Hershovitz’s terminology, Hart’s view is that in modern municipal legal systems, our shared concept treats law as the “norms that are accepted as authoritative by officials,” although even that is not quite right for reasons we can consign to a note. [3]

Hershovitz, I think, would reject even the latter. He makes the astonishing claim that “the original sin among philosophers of law is the rigid insistence that this and not that set of norms counts as the law of the community” (83). One can, of course, reject a central question of general jurisprudence for at least two centuries—namely, what is the difference between those norms that are legal and those norms that are not—but there should be a good reason for doing so. [4]   After all, when I want to make a valid will in Illinois, I go see my lawyer and not a moral philosopher: I want to know what legal norms govern the making of wills in my jurisdiction, not what norms morally ought to govern them, even in light of past institutional actions in Illinois. Hershovitz says that “What’s at issue” in court “is the norms that are [morally] authoritative” (83), but this is not true: all that matters is the norms that are legally valid, regardless of whether we have all-things-considered reasons to comply with them. That’s why morally indifferent lawyers can do good legal work.

In Chapter 4, Hershovitz considers laws and legal systems that are immoral and argues that “some aspects of immoral practices may [nonetheless] generate genuine [moral] obligations” (111). He does not offer a general theory of when bad laws generate moral obligations (which is what his theory would seem to require), but does discuss some suggestive examples. Citing Nazi Germany and some others, he observes that a legal system can be so immoral “that it is worth casting the system aside and seeking something better, even if that risks the abyss” (104). No one, including legal positivists, disagrees with that. Do those places have “legal systems”? Hershovitz doesn’t say, not wanting to commit the original sin I suppose.

Chapter 5 offers a nuanced exploration of the “moral consequences our legal practices might have” (132), although for reasons I do not understand, Hershovitz frames this as a dispute with the more familiar question about whether there is an obligation to obey the law just because it is the law. He says the latter is a question of “marginal importance” (112), even though an affirmative answer would be rather significant, which no doubt explains why so many luminaries, past and present, have addressed it. Despite the peculiar dismissal of the traditional question, Hershovitz offers, among other things, an interesting account of how legal prohibitions on otherwise immoral conduct nonetheless are morally important because they give the state standing to prosecute crimes (122–127).

I did, however, find Hershovitz’s use of (morally) “wrong” in this chapter somewhat confusing. He says, for example, that if “I owe you $500. . .I would wrong you if I don’t [pay you]” even if “I need the money to pay for my child’s medical care” (121), although he says wronging you would be the right thing to do. But you would not be justified in blaming me, given that my child’s health is more important than the debt, and, indeed, you could blame me for not attending to my child’s health if I paid off the debt instead. Not all harms are wrongs. The difficulty here, I suspect, is that “wrong” does not have a lot of cognitive content, and that many of Hershovitz’s judgments on particular cases are more ethnographic data about the etiquette norms of his class and milieu than philosophical insights. But Hershovitz is a moral realist, [5]   and so takes his moral feelings quite seriously.

Chapter 6 argues “that the rule of law requires a shared moral outlook. Officials and (to a lesser extent) laypeople must see legal practices as sources of morality” (147–8). The “rule of law” is glossed in terms of Lon Fuller’s principles of legality (143) and the idea that political power is constrained by public norms and procedures (142). The shared “moral outlook” recognizes that efficacious legal institutions (which the rule of law makes possible) can generate moral obligations by facilitating coordination, resolving disputes peacefully, giving voice to everyone, and so on (144, a theme taken up in earlier chapters as well, but without a clear theory of when this is true).

Hershovitz purports to illustrate the latter with a story of how Alabama legal officials removed former Alabama Supreme Court Justice Roy Moore from office for failing to abide by the decisions of the federal courts on matters of federal constitutional law. Hershovitz makes the fanciful claim that they did this because Alabama legal officials shared the preceding “moral outlook” (143). What actually happened—namely, Alabama legal officials sanctioned a judge for breaching his clear legal duty by defying the order of a federal court over which it had jurisdiction—is dismissed by Hershovitz as merely the “official reason” (138) for his removal. Hershovitz, hell bent on moralizing every legal decision, notes that the “official reason” also mentioned that Moore “sought legal redress by appealing to the limit of judicial review; he was bound by, and had the duty to follow, the rulings of the federal courts” (138). Hershovitz adds that this “is a moral claim every bit as much as it is a legal one” (138). It could be construed as a moral claim, of course, but there is no evidence that is how Alabama officials thought about it. One could ask: is there a good moral reason for Alabama to insist that judges honor their legal obligations? But Hershovitz, in keeping with the trivial reading discussed at the start, simply insists the legal questions are moral ones. [6]

Chapter 7 defends the view that lawyers are “moral experts.” Given the preceding, this seems mostly unsurprising: if “law is a moral practice,” after all, and lawyers are legal experts, then they are moral experts. Once again, the trivial reading of “law is a moral practice” is doing all the work. Hershovitz starts by explaining how moral philosophers can be moral experts despite their disagreements. He cautions that “we should be careful not to exaggerate the extent of the disagreement” (152), which he then proceeds to wildly understate (cf. Leiter 2021 for the contrasting view). We can put that aside. More oddly, given Hershovitz’s moral realism, he invokes a 1972 defense of moral expertise by Peter Singer (then a moral anti-realist), according to which moral experts are good at collecting all the facts and then drawing valid inferences from them given “whatever moral view” one holds (154). One might have hoped moral experts also know which moral view is true! This discussion was quite superficial.

Hershovitz then turns to the question of whether lawyers are “assholes,” although the real issue is whether the existence of morally bad or indifferent lawyers is compatible with the thesis that “law is a moral practice.” Of course it is compatible, since his actual thesis is that any deontic talk in law can be recast in moral terms. He concludes by suggesting that “We ought to invite lawyers to see law as a moral practice—to see themselves as part of a moral endeavor” (167). As Herlinde Pauer-Studer (2020: 205) reminds us, the notorious Nazi judge Roland Freisler would have agreed: “There can be no divide between a requirement of law and a requirement of morality. For requirements of law are requirements of decency.” This does not show Hershovitz is wrong, but it does suggest that speculating about how a thesis about the nature of law will affect practice is a fool’s errand. (Hart did not, contrary to Hershovitz's presentation, rest his defense of legal positivism on any such speculation; he touched on the topic only in response to Fuller’s opposite speculation.)

Hershovitz’s authorial voice is conversational and inviting, and his writing is often clever and funny. I suspect this will make the book effective with readers who know little about general jurisprudence or its history. [7]   Hershovitz professes to wanting to avoid “clutter,” but serious scholarship (including in jurisprudence: e.g., Kelsen, Hart, Raz) often involves “clutter,” i.e., acknowledging the history of a problem, the positions and distinctions others have thought important, the reasons for them, and the arguments against them. This book does almost none of that, so it cannot be recommended to anyone new to the subject, who will simply be left in the dark about the actual questions and problems in general jurisprudence. Despite Hershovitz’s professed interest in discouraging readers from “dig[ging] in and cheer[ing] for a team” (15), Hershovitz is very clearly on a team: anti-positivist, Dworkinian, and moral realist. The book is an amusing, meandering sketch of what seem to me implausible views, with too little serious argument, and too little effort to consider objections, even obvious ones, from the other “teams.”

ACKNOWLEDGMENTS

I am grateful to Elena Di Rosa, Alma Diamond, Josh Kaufman, Richard Stillman, and Helen Zhao for illuminating and incisive discussion of the Hershovitz book in a reading group at the University of Chicago Law School during the 2024 Winter and Spring quarters; many of their excellent insights influenced this review, although none should be supposed to agree with it! I also thank Emad Atiq and Nina Varsava for comments on the penultimate draft.

Greenberg, Mark. 2004. “How Facts Make Law,” Legal Theory 10: 157–198.

Leiter, Brian. 2011. “The Demarcation Problem in Jurisprudence: A New Case for Skepticism,” Oxford Journal of Legal Studies 31: 663–677.

-----. 2015. “Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature,” Hastings Law Journal 66: 1601–1615.

----. 2021. “Disagreement, Anti-Realism about Reasons, and Inference to the Best Explanation,” Ethical Theory & Moral Practice : https://link.springer.com/article/10.1007/s10677-021-10219-y

-----. Forthcoming. “The Metaphysical Turn in Recent American Jurisprudence,” in Leiter, From a Realist Point of View (Oxford: Oxford University Press).

Pauer-Studer, Herlinde. 2020. Justifying Injustice: Legal Theory in Nazi Germany (Cambridge: Cambridge University Press).

[1] Another possibility (suggested by Hershovitz’s discussion of promising at 28) is that he thinks that legal practices, by their nature (as it were), aim to change people’s moral relationships, regardless of the actual practice and intentions. Some recent legal philosophers, like Mark Greenberg and Mark Murphy, do hold something like this view, although only Murphy has an argument for it. Hershovitz offers no argument for it, so I suspect it is not what he means. Even later (186), he suggests his view is “that we see our legal practices as (in part) efforts to adjust what we [morally] owe each other.” Anyone could take that approach, so it would tell us nothing about the nature of law or legal reasoning. This seems less “Law is a moral practice” than “let’s view law as if it were a moral practice.”

[2] This idiosyncratic formulation comes from Mark Greenberg (2004), but Greenberg speaks of the “ existence and content” of law. Hershovitz’s truncation is striking. In the 20th century, the positivist thesis concerned the existence question (when does a norm exist as a norm of the legal system, i.e., when is it valid); Raz added the question of how content is determined, and Greenberg runs with that. On the general problems with this framing, see Leiter (forthcoming).

[3] What officials accept as authoritative are criteria of legal validity that tell us which norms are part of the law, but particular judges can be mistaken about the application of these criteria and thus deem norms legally valid that are not so. Hershovitz’s evidence against Hart’s view is supposed to be how courts talk in hard cases (a Dworkinian move, that is hardly decisive for a theory of law) and a faculty lounge conversation among his law colleagues about whether Trump could pardon himself (89–93).

[4] My own view (Leiter 2011) is that the best answer to the question “What is law?”—Hart’s answer—invariably yields fuzzy borderline cases, especially in the highest appellate courts, and it is a mistake to think that eliminating the “fuzz” in those cases is relevant to the question we are really concerned about: namely, what ought the court do? My sense is Hershovitz thinks we should only be asking, all the time, “What ought the court do?” with the past decisions of legal institutions being relevant only to the extent they affect our moral reasoning, as past events sometimes do. This would be the end of the legal system as we know it, of course.

[5] Hershovitz’s occasional comments on moral anti-realism are silly and superficial (e.g., 24, 194–195): “I have met people who acted as if they did not owe anything to others. But I have never met anyone who acted as if she wasn’t owed anything by others” (194). Nothing in moral anti-realism requires one not to have attitudes about obligations (to others or oneself); it just denies their objectivity. He also claims, bizarrely, that if you are “skeptical about moral claims, you should be skeptical about legal claims” ( id. ) even though the latter are, on a positivist view, just certain kinds of institutional or social facts: skepticism about moral reality does not entail skepticism about social reality.

[6] At the end of the book (192–194), Hershovitz allows that one could deny that “legal” rights/duties are just “moral” rights/duties and admits that he has “not argued against” this possibility, “at least not directly” (193). Since this is probably the central question raised by his book, this is a remarkable admission. Hershovitz claims that treating moral and legal duties as distinct is “needlessly complicated” (193), although I would have thought his book was evidence of needless complication both metaphysically (he needs moral realism), and conceptually (e.g., he goes to great length, in two different chapters, to explain how it is that bad laws can nonetheless produce moral obligations, although he never offers a general theory of when this is so).

[7] Most of the dust jacket blurbs fall into that category; the exceptions are a diehard Dworkinian, as well as a former colleague, friend, and mentor.

Law and Morality: Relationship including Critical Analysis

Difference between law and morality, the following are some of the differences between law and morality:.

• Law is concerned with a person's individual liberty, while morality is concerned with collective conceptions of what is good and evil.
• Law governs a man's behaviour when he is a member of a particular society, whereas morals govern a man's behaviour even when he is alone.
• Laws consider a man's outward behaviour, while morals consider factors such as inner resolve and willpower direction.
• Law is imposed by "external coercion," while values appeal to an individual's free will.[3]

Case laws on Law and Morality

• Queen vs. Dudley and Stephen's Case [4] For many days, the defendants, Dudley and Stephens, as well as two other gentlemen, Mr. Brooks and the survivor, Richard Parker, sat on the boat. When it became clear that everyone would perish from thirst and hunger, the defendants agreed to kill Parker for the sake of the others. A man who kills another to eat his flesh in order to escape hunger death is guilty of murder; however, he is in such circumstances at the time of the act that he believes and has fair reasons to believe that it is the only way to save his life. Judgment of the case: In this case, the court held that one person cannot sacrifice another person's life to save his or her own. And on these facts, there was no evidence of any necessity that could justify the prisoners in killing the boy and they were guilty of murder. It becomes very much clear by the decision in this case that what appeared to be morally right from the eyes of the defendants was considered as a crime in the eyes of the law.[5]  
• Oppenheimer v Cattermole [6] He lost his German citizenship and was liable to pay taxes under German law 1913, "When there were no problems of the countries being at war," which claimed that a German lost their German nationality if they obtained a foreign nationality without permission.[7]

Relationship between Law and Morality:

Critical analysis of the relationship between law and morality:.

• https://www.lawcolumn.in/relation-between-law-and-morality/ (Visited on April 10, 2021
• https://www.verywellmind.com/what-is-morality-5076160 (Visited on April 10, 2021)
• https://www.legalbites.in/relation-between-law-and-morality/ (Visited on  April 10, 2021)
• (14 QBD 273 DC)
• https://legalpaathshala.com/law-justice-and-morality/ (Visited on April 10, 2021)
• [1976] AC 249
• https://indianlegalsolution.com/law-and-morality/ (Visited on April 10, 2021)
• https://www.politicalsciencenotes.com/articles/relationship-and-difference-between-law-and-morality/290 (Visited on April 10, 2021)
• [2018] SC 746
• https://www.lawcolumn.in/relation-between-law-and-morality/ (Visited on April 10, 2021)

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Theory of Relationship between Law and Morality

Author name:   manmeet singh, ever since the revival of the scientific study of jurisprudence the connection of law and morality has much discussed, but the question is not yet, and perhaps never will be settled. every variety of opinion has been entertained, from the extreme doctrine held by austin that for the purpose of the jurist, law is absolutely independent of morality, almost to the opposite positions, held by every oriental cadi, that morality and law are one..

Ever since the revival of the scientific study of jurisprudence the connection of law and morality has much discussed, but the question is not yet, and perhaps never will be settled. Every variety of opinion has been entertained, from the extreme doctrine held by Austin that for the purpose of the jurist, law is absolutely independent of morality, almost to the opposite positions, held by every Oriental cadi, that morality and law are one. The question is an important one, and upon the answer which is given to it depends upon the answer which is consequences. The problem is an intensely practical one. The popular conception 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 than to enable men to lead sober and industrious lives. The average man regards law as justice systematized, and justice itself as a somewhat chaotic mass of moral principles. On this view, the positive law is conceived of as a code of rules, corresponding to the code of moral laws, deriving its authority from the obligatory character of those moral laws, and being just or unjust according as it agrees with, or differs from them. This, like all other popular conceptions, is inadequate for scientific purposes, and the jurist, so for at least as he is also a scientist, is compelled to abandon it. For it is contradicted by the fact’s. positive laws do not rest upon moral laws and common notions of justice furnish no court of appeal from the decrees of the State. The average man confounds law and morality, and identifies the rules of law with the principles of abstract justice.

No Distinction in Ancient Times

In the earlier stages of the society there was no distinction between law and morals. In Hindu law, the prime source of which are the Vedas and the Smritis, we do not find such distinction in the beginning. However, later on, Mimansa laid down certain principles to distinguish obligatory from recommendatory injunctions. In the West also the position was similar. The Greeks in the name of the doctrine of ‘natural right’ formulated a theoretical moral foundation of law. The roman jurist in the name of ‘natural law’ recognized certain moral principles as the basis of law. In the Middle Ages, the Church become dominant in Europe. The ‘natural law’ was given a theological basis and Christian morals were considered as the basis of law.

Moral as a part of law

There are some who assert that even if law and morals are distinguishable it remains true that morality is in some way an integral part of law or of legal development, that morality is "secreted in the interstices" of the legal system, and to that extent is inseparable from it. Thus it has been said that law in action is not a mere system of rules, but involves the use of certain principles, such as that of the equitable and the good (aequum et bonum). By the skilled application of these principles to legal rules the judicial process distills a moral content out of the legal order, though it is admitted that this does not permit the rules themselves to be rejected on the general found of their immorality. Another approach would go much further and confer upon the legal process an inherent power to reject immoral rules as essentially non-legal; this seems to resemble the classical natural law mode of thought, but it is urged, the difference is that according to the present doctrine it is a matter of the internal structure of the legal system, which treats immoral rules as inadmissible rather than as being annulled by an external law of nature. If value judgments such as moral factors, form an inevitable feature of the climate of legal development, as in generally admitted, it is difficult to see the justification for this exclusive attitude. Value judgment which enter into law will require consideration of what would be a just rule or decision, even though not objective in the sense of being based on absolute truth, may, nevertheless, be relatively true, in the sense of corresponding to the existing moral standards of the community. Whether it is convenient or not to define law without reference to subjective factors, when we come to observe the phenomena with which law is concerned and to analyze the meaning and use of legal rules in relation to such phenomena, it will be found impossible to disregard the role of value judgments in legal activity, and we cannot exercise this functional role by stigmatizing such judgments as merely subjective or unscientific. The Problem about the Nature of Law J.Raz (1982) The theory of knowledge attempts to clarify the nature of knowledge, the philosophy of logic examines the definition of logic, moral philosophy reflects on the nature and boundaries of morality and so on. One finds philosophers who took the enquiry concerning the nature of law to be an attempt to define the meaning of the word "law". Traditionally those who adopted the linguistic approach concentrated on the word "law". However, it encountered the overwhelming problem that that word is used in a multiplicity of non-legal contexts. We have laws of nature and scientific laws, laws of God and thought, of logic and of language, etc. Clearly the explanation of "law" has to account for its use in all these contexts and equally clearly any explanation which is so wide and general can be of very little use to legal philosophers. Only one assumption can the explanation of "law" hope to provide the answer to the legal philosopher's inquiry into the nature of law. That assumption is that the use of "law" in all its contexts but one is analogical or metaphorical or in some other way parasitical on its core meaning as displayed in its use in one type of context and that that core meaning is the one the legal philosopher has at the centre of his enquiry. Unfortunately, the assumption is mistaken. Its implausibility is best seen by examining the most thorough and systemic attempt to provide an analysis of "law" based on this assumption, that proposed by John Austin in The Province of Jurisprudence Determined. The Lawyers' Perspective Many legal philosophers start from an unstated basic intuition: "The law has to do with those considerations which it is appropriate for the courts to rely upon in justifying their decisions." Most theorists tend to be by education and profession lawyers and their audience often consists primarily of law students. Quite naturally and imperceptibly they adopted the lawyers' perspective on the law. Lawyers' activities are dominated by litigation in court, actual or potential. They not only conduct litigation in the courts. They draft documents, conclude legal transactions, advise clients, etc., always with an eye to the likely outcome of possible litigation in which the validity of the document or transaction or the legality of the client's action may be called into question. From the lawyer's point of view the law does indeed consist of nothing but considerations appropriate for courts to rely upon. Hans Kelsen says he follows a combination of the linguistic approach and the institutional approach: "Any attempt to define a concept in question. In defining the concept of law we must begin by examining the following questions: Do the social phenomena generally called law present a common characteristic distinguishing them from other social phenomena of a similar kind? The clue to the methodological approach Kelsen was in fact pursuing is in his insistence that legal theory must be a pure theory. Kelsen regarded it as doubly pure. It is pure of all moral argument and it is pure of all sociological facts. Kelsen indicates his belief that the analysis of legal concepts and the determination of the content of any legal system depends in no way at all on the effects the law has on the society or the economy, nor does it involve examination of people's motivation in obeying the law or in breaking it. For Kelsen, it is self-evident that legal theory is free of all moral considerations. The task of legal theory is clearly to study law. If law is such that it cannot be studied scientifically then surely the conclusion that if the law does involve moral considerations and therefore cannot be studied scientifically, then legal theory will study only those aspects of the law which can be studied scientifically. Since Kelsen has no good reason to insist that legal theory should be free from moral consideration, he has no good reason to delimit the law in the way he does. The international Approach It is the lawyer's perspective which delivers the verdict. Yet there is something inherently implausible in adopting the lawyer's perspective as one fundamental methodological stance. There is no doubting the importance of the legal profession and of the judicial system in society. It is however, unreasonable to study such institutions exclusively from the lawyer's perspective. Institutional approach seems much superior to its rivals. The institutional approach strives to present an analysis of a central political institution should be accepted as the analysis of law. From the institutional point of view, the basic intuition is the starting point for further critical reflection. It is entirely plausible to regard the notion of law as bound up with that of a judicial system but what are the essential characteristics of a court and why are they important to the political organization of society? Three features characterize courts of law: 1. They deal with disputes with the aim of resolving them. 2. They issue authoritative rulings which decides these disputes. 3. In their activities they are bound to be guided, at least partly, by positivist authoritative consideration. At the highest level of philosophical abstraction the doctrine of the nature of law can and should be concerned with explaining law within the wider context of social and political institutions. It shows how the inclination to identify the theory of law with a theory of adjudication and legal considerations with all those appropriate for courts is based on a short sighted doctrine overlooking the connection of law with the distinction between executive and deliberative conclusion. Clearly, a theory of adjudication is a moral theory. It concerns all the considerations affecting reasoning in the courts, both legal and non-legal. When the doctrine of the nature of law is identified with a theory of adjudication it becomes itself a moral theory. The doctrine of the nature of law yields a test for identifying law the use of which requires no resort to moral or any other evaluative argument. But it does not follow that one can defend the doctrine of the nature of law itself without using evaluative arguments. Its justification is tied to an evaluative judgment about the relative importance of various features of social organizations and these reflect our moral and intellectual interest and concerns. Law and Morality In the modern world, morality and law are almost universally held to be unrelated fields and, where the term "legal ethics" is used, it is taken to refer to the professional honesty of lawyers or judges, but has nothing to do with the possible "rightness" or "wrongness" of particular laws themselves. This is a consequence of the loss of the sense of any "truth" about man, and of the banishment of the idea of the natural law. It undermines any sense of true human rights, leaves the individual defenseless against unjust laws, and opens the way to different forms of totalitarianism. This should be easy enough to see for a person open to the truth; but many people's minds have set into superficial ways of thinking, and they will not react unless they have been led on, step by step, to deeper reflection and awareness.

Relationship between Law and Morality or Ethics

Law is an enactment made by the state. It is backed by physical coercion. Its breach is punishable by the courts. It represents the will of the state and realizes its purpose. Laws reflect the political, social and economic relationships in the society. It determines rights and duties of the citizens towards one another and towards the state. It is through law that the government fulfils its promises to the people. It reflects the sociological need of society. Law and morality are intimately related to each other. Laws are generally based on the moral principles of society. Both regulate the conduct of the individual in society. They influence each other to a great extent. Laws, to be effective, must represent the moral ideas of the people. But good laws sometimes serve to rouse the moral conscience of the people and create and maintain such conditions as may encourage the growth of morality. Laws regarding prohibition and spread of primary education are examples of this nature.Morality cannot, as a matter of fact, be divorced from politics. The ultimate end of a state is the promotion of general welfare and moral perfection of man. It is the duty of the state to formulate such laws as will elevate the moral standard of the people. The laws of a state thus conform to the prevailing standard of morality. Earlier writers on Political Science never made any distinction between law and morality. Plato's Republic is as good a treatise on politics as on ethics. In ancient India, the term Dharma connoted both law and morality. Law, it is pointed out, is not merely the command of the sovereign, it represents the idea of right or wrong based on the prevalent morality of the people. Moreover, obedi­ence to law depends upon the active support of the moral sentiments of the people. Laws which are not supported by the moral conscience of the people are liable to become dead letters. For example laws regarding Prohibition in India have not succeeded on account of the fact that full moral conscience of the people has not been aroused in favor of such laws. As Green put it, "In attempting to enforce an unpopular law, a government may be doing more harm than good by creating and spread­ing the habit of disobedience to law. The total cost of such an attempt may well be greater than the social gain." Although law and morality arc interdependent yet they differ from each other in their content, definiteness and sanction. Some points of distinction between law and morality may be brought out as follows: Law: The Oxford English Dictionary defines the law as: ‘the body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects.’ That this should be regarded as the definition of law for the English language is evidence of the influence legal positivism has upon the philosophy of law in our culture. The central themes of positivism are the contentions: firstly, that the existence of law rests upon identifiable social facts and, secondly, that it is necessary to maintain a conceptual distinction between law and morality. In this essay I will examine the positivist assertion that law is identifiable independently of morality, with a particular focus on the theory of H.L.A Hart. 1. Law regulates and controls the external human conduct. It is not concerned with inner motives. A person may be having an evil intention in his or her mind but law does not care for it. Law will move into action only when this evil intention is translated into action and some harm is actually done to another person. 2. Law is universal in a particu­lar society. All the individuals are equally subjected to it. It does not change from man to man. 3. Political laws are precise and definite as there is a regular organ in every state for the formulation of laws. 4. Law is framed and enforced by a determinate political author­ity. It enjoys the sanction of the state. Disobedience of law is gen­erally followed by physical pun­ishment. The fear of punishment acts as a deterrent to the breach of political law. 5. Law falls within the purview of a subject known as Jurispru­dence. Morality: 1. Morality regulates and con­trols both the inner motives and the external actions. It is concerned with the whole life of man. The province of law is thus limited as compared with that of morality because law is simply concerned with external actions and docs not take into its fold the inner motives. Morality condemns a person if he or she has some evil intentions but laws are not applicable unless these intentions are manifested externally. 2. Morality is variable. It changes from man to man and from age to age. Every man has his own moral principles. 3. Moral laws lack precision and definiteness as there is no author­ity to make and enforce them. 4. Morality is neither framed nor enforced by any political author­ity. It does not enjoy the support of the state. Breach of moral prin­ciples is not accompanied by any physical punishment. The only check against the breach of moral­ity is social condemnation or indi­vidual conscience. 'Moral actions are a matter of choice of inner conscience of the individual, laws are a matter of compulsion'. 5. Morality is studied under a separate branch of knowledge known as Ethics. We may conclude the discussion in the words of Gilchrist, "The in­dividual moral life manifests itself in manifold ways. The state is the supreme condition of the individual moral life, for without the state no moral life is possible. The state, therefore, regulates other organizations in the common interest. The state, however, has a direct function in relation to morality." Points to Remember Laws may be defined as external rules of human conduct backed by the sovereign political authority. Law and morality are intimately related to each other.

Laws are generally based on the moral principles of a particular society. Some points of distinction may be brought out as follows:

(a) Laws regulate external human conduct whereas morality mainly regulates internal conduct. (b) Laws are universal; morality is variable. (c) Laws are definite and precise while morality is variable. (d) Laws are upheld by the coercive power of the state; morality simply enjoys the support of public opinion or individual conscience. (e) Laws are studied under Jurisprudence but morality is studied under Ethics.

Law and freedom

Both law and morality imply human freedom. Clearly, without freedom one cannot speak of morality. But the same holds for law, for if it were automatically and not freely obeyed, men would be mere robots. Law is not a simple indication of what happens, such as the law of physics; it is an admonition to free persons about what they are required to do if they wish to live freely and responsibly in society; and it normally carries with it a sanction or punishment to be imposed on whoever is shown to have acted against given norms of conduct. Just law, properly understood, appeals to freedom. Nevertheless one of the most generalized liberal ideas is that law is by nature the enemy of freedom. Servais Pinckaers holds that Catholic moralists have gone through many centuries under the influence of this mentality which has led, by reaction, to the anti-law approach of much of contemporary moral theology. In this view, law and freedom were seen as "two opposed poles, law having the effect of limitation and imposing itself on freedom with the force of obligation. Freedom and law faced each other as two proprietors in dispute over the field of human actions. The moralists commonly said, "Law governs this act, freedom governs that one..." The moralists were traditionally the representatives of the moral law, and their mission was to show to conscience how to apply it in a particular situation, in a "case of conscience". Today we witness a strong tendency to invert the roles; the moralists now regard themselves as defenders of freedom and of personal conscience" [as against the law].

Law and justice

Law cannot attempt to regulate the purely interior sphere of personal conduct; morality can. Human or civil law is connected with external actions, precisely insofar and because they impinge on the rights or lawful actions of others. Hence the necessary connection of law with justice. For the regulation of interpersonal relations must work from the basic principle of justice: "to each his due". Hence arises the fundamental question of what is due to each one, and from this the further question of human rights. To each his due. Something is due to each. This is the sense of equality before the law. "The possibility of giving his or her due not only to a relative, friend, citizen or fellow believer, but also to every human being simply because he is a person, simply because justice requires it, is the honor of law and of jurists. If there is an expression of the unity of the human race and of equality between all human beings, this expression is rightly given by the law, which can exclude no one from its horizon under pain of altering its specific identity". Even for those who see law and freedom in mutual opposition, the whole concept of law is essentially connected with that of justice. The ancient principle lex iniusta non est lex (an unjust law is not a law), is at the basis of so many modern protests in the name of freedom. "This law is discriminatory, therefore it is not just". But justice is a moral concept; so these protests bear out the intrinsic connection between law and morality, "There is another crucial link between the virtues and law, for knowing how to apply the law is itself possible only for someone who possesses the virtue of justice". 'The law must respond to "living situations"...' Very good, but not in the sense that it must take the situation as its norm. Justice must remain the norm, and sometimes the law must regain ground for justice.

Influence of Morals on Law

Law and Morals act and react upon and mould each other. In the name of ‘justice’, ‘equity’, ‘good faith’, and ‘conscience’ morals have in-filtered into the fabrics of law. In judicial law making, in the interpretation of legal precepts, in exercising judicial discretion (as in awarding punishment) moral considerations play a very important role. Morals work as a restraint upon the power of the legislature because the legislature cannot venture to make a law which is completely against the morals of the society. Secondly, all human conduct and social relations cannot be regulated and governed by law alone. A considerable number of them are regulated by morals. A number of action and relations in the life of the community go on very smoothly without any intervention by law. Their observance is secured by morals. So far as the legal rules are concerned, it is not the legal sanction alone that ensure their obedience but morals also help in it. Thus, morals perfect the law. ‘In marriage, so long as love persist, there is little need of law to rule the relations of the husband and wife – but the solicitor comes in through the door, as love flies out of the window.’

Growing Importance of Morals

Now, sociological approach has got its impact upon the modern age. This approach is more concerned with the ends that law has to pursue. Thus, recognized values, or, in other words, morals (of course the morals of the modern age) have become a very important subject of study for good law making. On international law also morals are exercising a great influence. The brutalities and inhuman acts in World Wars made the people to turn back to morals and efforts are being made to establish standards and values which the nations must follow. Perhaps there is no other so forceful ground to justify the Nuremberg Trials as morals. If the law is to remain closer to the life of the people and effective, it must not ignore morals. Conclusion Generally, legal rules are composite and are derived from heterogeneous source. In India, if we examine all the legal perspective, we shall find that some of them have come from personal laws and local custom, a good number of them are based on foreign rules and principles (mainly English), some are based on the logic or political ideology and so on. Secondly, ‘public opinion’ which greatly influences law is made up of a number of things – political ideas, economic theory, ethical philosophy etc. These directly and indirectly influence law. Therefore, when so many elements work in shaping the legal precepts, the matter cannot be put in such a simple way as the ‘relation between law and morals’, because a number of factors join hands in influencing law, and morals is only one of them. However, some observations can be made about the relationship between law and morals. Endnotes # http://www.JStore.com/law_and_morality.php accessed on Thursday, 15th October, 2015 at 12:15 pm # Trpathi, B.N. Mani, Jurisprudence (Legal Theories), Allahbad law Agency, 18th Edition (2008), p 140 # http://theoryofjurisprudence.blogspot.in/2006/08/moral-as-part-of-law.html accessed on Friday 16th October, 2015 at 13:30 pm # http://Law and Morality _ www.cormacburke.or.ke.html accessed at 16th October, 2015, at 12:30 pm # http://Relation between Law and Morality or Ethics.html accessed on 15th October, 2015 at 14:00 pm # Servais Pinckaers: Pour une Lecture de Veritatis Splendor, Paris, 19 # 95, pp. 41-42. # Pope John Paul II, Address to the International Union of Catholic Jurists, Nov. 24, 2000. # Alasdair MacIntyre, After Virtue, 1984 (2nd Edition), p. 152. # Supranote 3 at p 146 # Paton, A Text Book of Jurisprudence # Supranote 10 at p 147

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Delve into the fascinating relationship between law and morality, as we examine the key concepts and their significance in society. This article will guide you through the essential definitions and distinctions, while also exploring how the two intersect within the UK legal system . Understand the integral role law and morality play in historical and contemporary cases, and discover the differences that set them apart. Prepare yourself for a compelling exploration of these fundamental concepts that shape the very fabric of our society. Welcome to the world of law and morality.

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Definition of Law and Morality

Law and morality are two concepts that act as value systems and govern human behaviour in different aspects.

Understanding Law and Morality Concepts

Law represents the formal rules and regulations that have been established by a recognised authority, whereas morality is the informal value system that exists within society. These two concepts are intertwined, as they set the standards for what is considered right and wrong, and they often influence each other in various ways.

Law: A system of rules that a particular country or community recognises as regulating the actions of its members and which it may enforce by the imposition of penalties.

Morality: Principles concerning the distinction between right and wrong or good and bad behaviour.

Key Differences between Law and Morality

Although law and morality share some similarities, there are important differences between the two concepts:

• Law is created and enforced by a recognised authority, whereas morality is an informal value system adopted by individuals and societies.
• Law can be enforced with sanctions, while morality relies on social pressure and self-regulation.
• Law is often more specific and unambiguous, while moral values can vary among people and can be interpreted differently by each individual.

While both law and morality contribute to the governance of human behaviour, there is not always a clear-cut relationship between the two.

For example, lying is generally considered immoral, but it is not always illegal. Conversely, criminal laws such as those prohibiting theft are both legally and morally wrong.

The Role of Law and Morality in Society

Law and morality play crucial roles in governing social relationships, shaping beliefs, guiding behaviour, and maintaining order in society. They often complement and influence each other, and understanding their roles can help create a more cohesive and harmonious society.

Role of Law in Society

Law serves several essential functions in society:

• It provides an authoritative and clear set of rules for people to follow
• It establishes consequences for those who break the rules
• It settles disputes between individuals and groups
• It defines the structure and organisation of different institutions within society

Law helps maintain order by providing a framework for citizens to follow, creating a sense of security and stability. Moreover, law is an essential tool for protecting the rights and freedoms of individuals, ensuring fairness and justice in various aspects of life.

Role of Morality in Society

Morality shapes the behaviour of individuals and groups in society and serves several vital functions:

• It guides people on what is considered good and bad behaviour
• It helps people make decisions in complex situations
• It fosters a sense of social cohesion and shared values
• It can act as a check on individual desires, promoting altruism and empathy in the community

Morality helps create a more harmonious society by encouraging individuals to consider the well-being of others and make responsible decisions. Furthermore, morality can influence the development of laws, as laws may be based on prevailing moral values in a society.

Despite their differences, both law and morality contribute to the creation of a just and orderly society. By understanding the roles they play and how they interact, we can work towards cultivating a better understanding of the intricacies involved in social relationships, governance, and the establishment of rules and values within any community.

Connection Between Law and Morality

Law and morality, though distinct concepts, often influence and interact with each other in various ways. They provide guidance for human behaviour and contribute to regulating societal conduct. Understanding the connection between law and morality is essential, as it helps in appreciating the complexities involving the creation, implementation, and interpretation of laws in different contexts.

How Law and Morality Intersect

The intersection between law and morality is not always clear or constant; rather, it tends to change over time, as social values and attitudes evolve. Nonetheless, there are several ways in which law and morality intersect:

• Legal rules may be based on moral values, as societies often enact laws that reflect their ethical principles. For example, laws prohibiting murder and theft are rooted in moral beliefs regarding the sanctity of human life and the importance of respecting individual property rights.
• Moral values can influence legal interpretations and decisions. Judges , lawyers , and other legal professionals may rely on moral principles when faced with issues that are not explicitly covered by existing laws, or when existing laws result in apparent injustices or inconsistencies.
• The law sometimes acts as a catalyst for moral change in society. Legal reforms may be implemented to promote more progressive or egalitarian moral values, as evidenced by the introduction of laws decriminalising homosexuality or permitting same-sex marriage in many countries.
• Moral pressure may lead to legal change. When a societal consensus about moral values shifts, it can result in a push for the legal system to adapt accordingly. This can be seen in movements for environmental protection, gender equality, or drug policy reform.

For instance, the abolition of slavery in many countries was driven by both moral outrage and legal activism, illustrating the intertwined nature of law and morality in effecting social change.

Relation Between Law and Morality in the UK Legal System

In the United Kingdom, the relationship between law and morality comprises an essential aspect of the legal system . From the development of law to its interpretation and enforcement, moral principles play a significant role. Some critical features of the relationship between law and morality in the UK legal system include:

• Parliament's role in creating and amending legislation is largely guided by the moral values and norms prevailing in society at a given time. This may result in the modification of existing laws or the introduction of new laws that better align with changing moral standards.
• Judges , as the interpreters of the law, are tasked with making decisions that consider both the letter of the law and the broader moral implications of their rulings. This may involve using their discretion to strike a balance between justice and adherence to the legal code.
• Common law, which is derived from the decisions of judges over time, often reflects moral judgments and perceptions of justice. This can be observed in various areas of law, such as tort law , contract law , and family law , where legal principles and rules have been influenced by evolving moral values.
• Legal principles and doctrines, such as the concept of equity, demonstrate the flexible nature of the UK legal system to accommodate changing moral values and extend justice beyond the strict application of statutory law.

Cases on Law and Morality Relationship

Throughout history, there have been numerous legal cases that provide insights into the interplay between law and morality. These instances demonstrate the various ways in which moral values have contributed to the interpretation and application of laws in different contexts.

Some notable cases illustrating the relationship between law and morality include:

R v Brown (1994): In this case, the UK House of Lords held that consensual sadomasochistic activities were illegal, despite the absence of harm to non-consenting parties. The ruling relied on moral considerations, noting that such activities were harmful to the public interest and could not be legally condoned.

• Donoghue v Stevenson (1932): Often regarded as the cornerstone of modern tort law in the UK, this case established the "neighbour principle," which set the foundation for the duty of care concept. The case relied on moral principles, highlighting the importance of considering the reasonably foreseeable consequences of one's actions on others.
• R v Dudley and Stephens (1884): In this controversial case, the defendants were convicted of murder for killing and eating a fellow sailor to survive after a shipwreck. The court rejected the necessity defence, stating that the killing could not be morally justified, despite the extreme circumstances.
• R v Wolfenden (1957): This case led to the formation of the Wolfenden Committee, which recommended the decriminalisation of homosexuality in the UK. The Committee drew a distinction between criminal law, which should concern itself with public order and safety, and moral law, which should govern private conduct.

These cases show that the relationship between law and morality is a complex and evolving process, as legal systems need to balance the demands of justice, fairness, and public policy while remaining adaptable to evolving societal norms and values.

Difference Between Law and Morality

It is crucial to understand the difference between law and morality, as both are essential aspects of societal order and governance. Although they may sometimes overlap and influence each other, they are distinct concepts with unique foundations, scope, and enforcement mechanisms. Recognising the differences between law and morality allows a better understanding of their respective roles in shaping human behaviour, promoting justice, and guiding ethical decisions in various situations.

Key Distinctions in Law and Morality

There are several key distinctions between law and morality that set them apart and highlight their separate roles in society.

• Source: Law is derived from formal, recognised authorities, such as governments and legislative bodies that enact, amend, and repeal legal rules and regulations. Morality, on the other hand, is an informal system of values, norms, and beliefs that are culturally and socially influenced, often deeply rooted and not codified in the same manner as laws.
• Enforcement: Legal rules and penalties are enforceable by the state and its institutions, such as courts, police, and regulatory bodies. In contrast, morality is not strictly enforced by a central authority; it relies on individual conscience, social pressures, and informal sanctions to guide and correct behaviour.
• Scope and Application: Laws tend to be specific and relatively uniform, providing clear guidance on what is legally permissible or prohibited in a given jurisdiction. Morality, however, can be subjective and may differ from person to person or culture to culture, making it more challenging to codify and implement universally.
• Flexibility: Legal rules are usually more rigid and require formal changes or amendments if they are to be adjusted. Morality, however, can be more flexible and adaptive, as it is not constrained by the same institutional and procedural requirements of law. It can evolve over time and respond to changing social values and priorities.

These differences highlight the unique roles and functions of law and morality in society and demonstrate the varying ways in which these distinct concepts contribute to the regulation of human behaviour, the promotion of justice, and ethical decision-making.

Examples of Law and Morality Differences

In order to fully understand the differences between law and morality, it is helpful to explore specific examples showcasing instances where the two concepts diverge. These examples highlight their distinct nature and emphasise the importance of recognising their separate roles in society and the governance of human behaviour.

• Example: Tax avoidance involves using legal loopholes and strategies to minimise one's tax payable. While technically legal, it may be considered morally questionable, as it undermines tax revenue and may contribute to income inequality and social injustice.
• Example: Returning a lost wallet to its owner is morally commendable, as it shows honesty, integrity, and empathy. However, there is typically no legal obligation to return lost property, as the act is a personal moral choice rather than a legally mandated requirement.
• Example: Adultery is generally considered immoral, as it breaches trust and societal expectations within a committed relationship. However, in many jurisdictions, adultery is no longer a criminal offence , and legal sanctions are not imposed on those who engage in such behaviour.
• Example: Some legal regulations, such as traffic laws or building codes, are not directly derived from moral values but are primarily designed to ensure public safety and order, illustrating that not all legal rules are based on moral principles.
• Example: The civil rights movement in the United States led to significant legal reforms to end racial segregation and ensure equal rights for all citizens. These changes were driven by a moral imperative to promote social justice and equality, even though certain segments of society may have initially resisted or opposed the new legal standards.
• Example: When countries introduced laws to decriminalise homosexuality or allow same-sex marriage , these legislative changes initially encountered opposition from certain groups within society whose moral values did not align with the new legal provisions, highlighting the potential disconnect between law and prevailing morality.

These examples serve to underline the importance of recognising the differences between law and morality and appreciating the complexities associated with the interplay between these critical aspects of human behaviour, governance, and ethical decision-making.

Law and Morality - Key takeaways

Law and morality, both value systems, govern human behaviour in different ways: law is formal rules by a recognised authority, while morality is an informal value system within society.

Key differences between law and morality include enforcement, specificity, and origin: law comes from a recognised authority and is enforced, while morality relies on social pressure and can be interpreted differently by individuals.

Law and morality intersect by influencing legal interpretations, guiding human behaviour, and promoting social cohesion and shared values in society.

In the UK legal system, law and morality play significant roles from development to enforcement, including Parliament's creation and amendment of legislation and judges' interpretation of the law based on moral principles.

Examples of cases on law and morality relationship include R v Brown (1994), Donoghue v Stevenson (1932), R v Dudley and Stephens (1884), and R v Wolfenden (1957), which illustrate the complexities and evolving connection between law and morality.

Frequently Asked Questions about Law and Morality

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Law is a system of rules that a particular country or community recognises as regulating the actions of its members and which it may enforce by the imposition of penalties.

Morality is the principles concerning the distinction between right and wrong or good and bad behaviour.

Law is created and enforced by an authority, can be enforced with sanctions, and is more specific; morality is an informal value system, relies on social pressure, and varies among people.

What are the main roles of Law in society?

The roles of Law in society include providing clear rules to follow, establishing consequences for rule breakers, settling disputes, and defining the structure of institutions within society.

What are the main roles of Morality in society?

Morality guides people on good and bad behaviour, helps them make decisions in complex situations, fosters social cohesion, and promotes altruism and empathy in the community.

How do legal rules and moral values intersect?

Legal rules may be based on moral values, as societies often enact laws that reflect their ethical principles, such as prohibitions against murder and theft. Moral values can also influence legal interpretations and decisions, and the law may sometimes act as a catalyst for moral change or be changed due to moral pressure.

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