Ritesh Kumar
INTRODUCTION
Morality is an internal force. Morality appeals to the conscience, while law acts externally through sanctions.[1] A morality is a system of principles and values concerning people’s behaviour, which is generally accepted by a society or by a particular group of people.[2] Morality speaks of a system of behavior in regards to standards of right or wrong behavior. The word carries the concepts of:
· Moral standards, with regard to behavior;
· Moral responsibility, referring to our conscience; and
· A moral identity or one who is capable of right or wrong action. Common synonyms include ethics, principles, virtue, and goodness. Morality has become a complicated issue in the multi-cultural world we live in today. Let’s explore what morality is, how it affects our behavior, our conscience, our society, and our ultimate destiny.[3]
However, for the proper understanding of the concept of morality, it is necessary to discuss its relationship with law and its difference with law.
RELATION BETWEEN LAW AND MORALITY
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.[4]
C.K. Allen make following observation on relationship between law and morality: “Our Judges have always kept their fingers delicately but firmly upon the pulse of the accepted morality of the day. H.L.A. Hart says that there are many different types of relations between law and morals and there is nothing which can profitably be singled out for study as the relation between them. Instead it is important to distinguish some of the many different things which may be meant by the assertion or denial that law and morals are related.[5]
Roscoe pound stated that there are four stages in the development of law with respect to morality[6]:-
· The first stage is the pre-legal stage in which law and morals were the same thing. They were the two faces of the same coin.
· The second stage is that of strict law, codified or crystallized which in time is outstripped by morality and has not sufficient power of growth to keep abreast.
· The third stage is that of infusion of morality into the law and reshaping it by morals. In that stage, both the ideas of equity and natural law are potential agencies of growth.
· The final stage is that of conscious constructive law-making, the maturity of law, in which morals and morality are for the law-maker and that law alone is for the judge.
However, the relation between law and morality (morals) can be understood by dividing it into three parts:-
· Morals as the basis of law.
· Morals as the test of law.
· Morals as the end of law.
Morals as the basis of law:- As regards morals as the basis of law, there was no distinction between law and morals in the early stages of society. All the rules originated from the common source and the sanction behind them was of the same nature which was mostly in the nature of supernatural fear.[7] Though law and morality are not the same and many things may be immoral which are not illegal, yet the absolute divorce of law from morality would result in fatal consequences.[8]
Morals as the test of law[9]:- In the 17th and 18th centuries, when the natural law theory was as its peak, it was contended that law must conform to natural law. According to them, any law which does not conform to natural law is to be disobeyed and the government which makes such law should be overthrown. But in modern times, this view that law must conform to morals and if it not in conformity with the morals it is not valid and binding, does not hold good.
Morals as the end of law:- Morals have been often considered to be the end of law. Law is defined in terms of “justice” by many jurists. According to them, the aim of law is to secure justice which is very much based upon morals.[10]
DISTINCTION BETWEEN LAW AND MORALITY
There is a distinction between law and morals. Vinogradoff writes: “Law is clearly distinguishable from morality.[11] Arndts writes that there are four points of difference between law and morals:-[12]
· In law, man is considered as a person because he has a free will. In morals, we have to do with determining the will towards the good.
· Law considers man only insofar as he lives in community with others; morals give a guide to lead him even if he were alone.
· Law has to do with acts insofar as they operate externally, morals look to the intention-the inner determination and direction of the will.
· Law governs the will so far as it may by external coercion; morals seek a free self-determination towards the good.
However distinction between law and morality should be noted in the following points:-[13]
· Laws regulate external human conduct whereas morality mainly regulates internal conduct.
· Laws are universal; morality is variable.
· Laws are definite and precise while morality is variable.
· Laws are upheld by the coercive power of the state; morality simply enjoys the support of public opinion or individual conscience.
· Laws are studied under Jurisprudence but morality is studied under Ethics.
[1] Dr. Avtar Singh and Dr. Harpreet Kaur, Introduction to Jurisprudence 141 (LexisNexis, Haryana, 4th ed., 2013).
[2] Definition of Morality, available at https://www.collinsdictionary.com/dictionary/english/morality, (Visited on April 19, 2018).
[3] Available at https://www.allaboutphilosophy.org/morality.htm, (Visited on April 19, 2018).
[4] Ankita, “Relation between Law and Morality or ethics”, Preserve Articles, available at http://www.preservearticles.com/201106248502/relation-between-law-and-morality-or-ethics.html, (Visited on April 20, 2018).
[5] Dr. V.D. Mahajan, Jurisprudence and Legal Theory 90 (Eastern Book Company, 5th ed., Reprint, 2014).
[6] Ibid. p. 91.
[7] Ibid. p.91.
[8] Ibid. p. 92.
[9] Dr. Avtar Singh and Dr. Harpreet Kaur, Introduction to Jurisprudence 148 (LexisNexis, Haryana, 4th ed., 2013).
[10] Ibid. p. 148.
[11] Dr. V.D. Mahajan, Jurisprudence and Legal Theory 86 (Eastern Book Company, 5th ed., Reprint, 2014).
[12] Ibid. pp. 86-87.
[13] Distinction between Law and Morality, available at http://www.preservearticles.com/201106248502/relation-between-law-and-morality-or-ethics.html, (Visited on April 21, 2018).