Rajiv Gandhi National University of Law

Patiala, Punjab

Legal Research and Methodology

Project on
The Conflict between Morality and Law: An Everlasting Fight
Submitted to
Ms. Abhinandan Bassi
Assistant Professor of Law
SUBMITTED IN PARTIAL FULFILMENT OF
B.A.LL.B. (HONS.) FIRST SEMESTER

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809- Sehajbeer Singh Aulakh
851-Aditi Seetha
871- Isha Singh
891-Vaibhav Sharma
911-Saras Muzumdar
-1The Conflict between Morality and Law: An Everlasting Fight

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ACKNOWLEDGEMENTS

On the successful completion of this project, we would like to thank our respected
mentor, our legal method Professor, Ms. Abhinandan Bassi, who despite all of her preoccupations, provided us all the assistance we needed for the accomplishment of this
project and guided us while we tread on the tenebrous boulevard of ignorance. Had it not
been for her support we wouldnt be able to grasp the cognizance of something as
enthralling as this. We thank her profusely for providing us this engrossing topic to work
on which helped us to learn and relearn, to explore and re-explore our knowledge of the
social literature.

We also thank our honourable Vice Chancellor, Dr. Jaswal, and our esteemed Registrar,
Dr. G.I.S. Sandhu, for their inexplicable greatness to find time to educate us as and
when they find an opportunity.

We would like to convey our gratitude towards our friends and batchmates who have
rendered us their valuable time and without their help this project would not have been in
its present shape and form.

No work is complete with solo endeavour, neither is ours. We thank each and every nonteaching staff of RGNUL for their unconditional support and infinitum. We would also
like to convey our thanks to the Library Staff of RGNUL.

We are grateful to The Almighty, who has given us enough strength and blessings to
work hard and make it to the best of our ability.

Last but not the least; we thank our parents who have given us a chance to study in this
esteemed University, a haven for legal edification.

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CHAPTERISATION PLAN
1. Introduction- Sehajbeer Singh Aulakh
2. What is law and what is morality- Vaibhav Sharma
3. Conflict between law and morality- Saras Muzumdar
4. Tracing the conflict between law and morality in different countries- Isha Singh
5. Conclusion Aditi Seetha

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TABLE OF CONTENTS
1. Introduction....4-15
1.1 Research Methods used...4
1.2 Concept of morality...7
1.3 Principles of Morality8
1.4 Cromarties Principle of Morality..9
1.5 Ancient and Modern View.11
1.6 Points of distinction between law and morality.13
2. What is Law & What is Morality.15-23
2.1 Definition of law..15
2.2 Sources of law..15
2.3 Role of law...16
2.4 What is morality ..............................................................................................18
2.5 Definition of Morality..18
2.6 Origin of morality....20
2.7 Morality and Religion..20
2.8 Role of Morality...22
3. Conflict between law and morality...24-35
3.1 Explanation with examples..24
3.2 Article of Michael Bauman..26
3.3 Aspects of law not based on morality.27
3.4 Aspects of law based on morality...30
4. Tracing the clash between law and morality in different countries ....35- 44
4.1 Situation in Saudi Arabia.....36
4.2 Situation in Iran38
4.3 Situation in India..39
5. Conclusion45-49
6. Reference..49-51

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INTRODUCTION- Sehajbeer Singh Aulakh

In todays modern era, the development of civilization is at its peak. There are many
factors responsible for this development of civilizations. They vary to a great extent.
Some of these include education, technology, unity, globalization, trade, industry,
commerce. But at the end what matters for a civilized society is not its law or education
or administration. All that matters is the value system, culture, norms etc. These actually
help in shaping the society it forms the basic skeleton of any society in the world.
Transmission of these values and traditions to the subsequent generations is of utmost
importance. The downfall of the greatest generation is because they are unable to transfer
those fully.

RESEARCH METHODOLOGY USED

As the reader would be able to observe that during the course of the project, the
researcher has employed different approaches in the project to arrive at different
conclusions. These approaches have helped in widening the scope and outlook of the
project work. The researcher has tried and has been quite successful in answering
different questions that might have occurred to the reader right in the beginning of the
project. Some of the approaches that have been used in answering these very questions
and resolving the conundrum to somewhat an extent are discussed below:
Analytical or Logical Research Method: This approach per se deals with what the
present law is. The researcher has made earnest attempts to analyse the present laws and
has tried reaching a conclusion as to whether these laws hold good with the moral
standards of the society or not. The researcher has also discussed that how today, the
change in moral standards of the society as a whole, affect the laws that regulate the
people of the very society. Thus we have logically analysed that how present day laws
have evolved from long-practiced customs and how do moral standards affect the law
making institutions.
Historical Research Method: This method subscribes itself to the basic underlining
principle that a proper study of past will provide key to the present. The researcher has
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tried deriving significant fragments of information and experience from the past. With the
aid of historical experience, the researcher has made an attempt to relate the present day
socio-legal system, social and legal institutions and their varying forms and rules to their
primitive structures that existed in the past. Likewise, the researcher has studied laws in
the light of evolution from rudimentary customs that did not command obedience
forcefully but, were followed out of will.
Comparative Research Method: The researcher has actively employed comparative
approach in the project. The researcher has started out by finding what the law is in other
countries, and considering whether it can be drawn upon with or without modification.
Different countries like Saudi Arabia, Iran, and India have been studied and the conflict
between law and morality has been traced down the recent past. It has been noted that the
application of Sharia Law as in the Middle-Eastern countries has a very different impact
from what impact a democratic rule in India is met with. Though law and morality cannot
be separated but these two aspects still clash and are met with revolts in case both do not
agree with each other.
Ethical Research Method: This is the most important research method which is used by
the researcher here in the project because it in itself is the issue dealt within the project.
The researcher has taken up the subject of law and religion, the moral concepts of
religion are compared with the existing laws and a few suggestions have been made for
the improvement of those laws. The researcher has suggested that the laws should
develop with the changing needs and standards of the society so that the harmony
between law and morality is maintained. The laws must always keep pace with the
growing needs and broadening scope of the society and obsolete laws must be abolished.
Critical Research Method: The researcher has tried resolving the conflict between law
and morality by studying the same in depth and suggesting few changes for the
betterment of the society. The researcher has done a detailed study of the needs of the
contemporary society and has an idea which laws are in accordance with the moral
standards of the society and which ones do not qualify the test. The researcher has studied
the situation of India in the light of issues like suicide, legalisation of Euthanasia,
legalisation of Section 377 of IPC and has studied these issues battling it out between
legal standards and moral standards. The researcher has criticised some aspects like
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Passive Euthanasia and Section 377 saying that both of them may have been successful
on the legal front but, still fall short of the moral and ethical support of the society. The
team has tried reaching a balanced conclusion by critically looking at all aspects of
similarity and difference regarding law and morality.

1.1 Concept of morality

It is quiet known to most people in the world that there is a great influence of law and
morality in our daily lives. Both of them are somewhat responsible for the behavioral
conduct of the humans in the society in which they live. Law controls the behavior by
issuing threats of sanctions, punishments and fines if we fail to obey them. Morality
equally plays an important role in the structuring the behavior of human beings. If we
commit a certain wrong, we tend to get the feeling of guilt and approbation. On the
contrary if we are able to do a right thing, we are engrossed in the feelings of virtue and
praise for the work done. This tussle and the resulting push and pull force result in
developing the human conduct in the society.

1.2 Principles of morality

In general scenario, morality has lot of power. It has the quality and the command to be in
harmony or compliance with what is rightful and wrong conduct. It has a certain level of
standard and dignity with respect to considering what is right and what is wrong. The
word carries with itself the following concepts:
1. Standard that ought to be moral on basis of behavior
2. Responsibility which should me moral with reference to our conscience
3. Moral identity that is able to differentiate itself from right and wrong conduct.
Today man lives in a multi cultural world. Morality is a complex issue in such situation.
Experience and wisdom of man through ages makes us realize that law is incomplete
unless there is effect and relevance of morality.

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The principles or guidelines that ought to be followed for a proper behavior and conduct
within the society are all that is described under Morality. It is virtually impossible for
any society to exist for a long period of time without these guiding principles. In todays
world, morality is thought and referred to be carrying certain view regarding a particular
religion. But in fact if we have a close look at the definition of morality then we realize
that this is not the case. Almost every person in this world sticks to some kind of doctrine
that is moral in nature. The few of them are as follows-

(1) to make sure that there is harmony between all the individuals in the society;
(2) To help make people good in their conduct to ultimately have a good society; and
(3) To keep us in a good relationship with the power that created us
If the society that we live in today isnt a dictatorial one, then we are surely free to select
our own code of moral conduct. The main question arises when there is conflict in
choices of individuals. If we dont have a fixed reason of truth, there will be chaos and
conflict as everyone will be left with their own desires.

Cromartie believed one of the major targets that were neglected by the legislators was
that of morality being legislated. Only legislation aimed at preventing behavior harmful
to others was proper; legislation aimed at promoting morality was as much condemned,
and same was the case when it was related to paternalistically motivated legislation.

Example- a state should only promote laws that prevent any harmful and wrong action
but it does nothing to encourage a good behavior in the society. They believe that it
should not interfere in personal life of people and instead focus on better governance.

1.4 Cromartie Principle

The critic of what Cromartie tries to convey us is very easy.
If something is morally good, that gives each of us a reason to promote its attainment.
That is as true of legislators as of anyone else. If laws can be made that promote justice,
there is good reason to make such laws. How liberal they are depends on the structure of
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morality they would enact into law. If that morality contains such items as a general right
to liberty, then a moralist legislator should respect that part of morality too. Cromarties
harm principle is not a limit on proper legislative aim rather it is a theory of when
behavior is morally wrong. Most harming of others without their consent is morally
wrong, and most seriously immoral wrongs consist of causing such harms. The law we
ought to have should be as near to morally correct as we can make it.1

1.5 Ancient and Modern View

In the beginning, no one can make any sort distinction between the legal system and
system of values. Greek writers suggested that the model people were those who did
anything that is within the framework of legality. It was sheer due to the people who
made in laws in early civilizations that distinguished between the exact point of
difference between right and wrong. What should be legal vaguely represents about what
is actually right or just, that is, what we ought to say that it is morally right. Sometimes
this expression is made in a sense of opposition between what is the command of the
divine (i.e., what is morally right) and what do the authorities of the state pretend to
command (i.e., what is legally right). Apparently the entire progress of development and
use of human reason is enough for us to have knowledge of what is moral and we are able
to recognize difference between justice and morality.
But it didnt take a long time for the intellectual people of the societies to figure out the
precise difference between what is legally right as mentioned by the political authorities
and what is morally correct. Sometimes this concept is considered to be a division
between what is the command of the divine (i.e., what is morally right) and what the
political authorities actually tend to command (i.e., what is legally right).
In the book Antigone, by Sophocles, there is an excellent illustration in which the heroine
of the play defines the decree of the king i.e. the law and instead goes ahead and buries
her brother i.e. what she feels is morally correct.
1

Cromartie, Michael, ed. Caesars Coin Revisited: Christians and the Limits of Government.Grand Rapids:
Eerdmans/Washington, DC: The Ethics & Public Policy Center, 1996.

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It is not the only way that this stark contrast between legality versus morality is
expressed. We also realize that the important Greek philosophers often discuss the
dissimilarity within terms of realism, or between what seemed to appear in the case and
what a thorough rational investigation on the fields of study reveals about it.

For example, in ancient Greece, Plato was of the opinion that the cognizance and
awareness about morality, and the ability of an individual to distinguish it from what is
depends on the full development and use of human reason. Plato believed that there was a
very intimate connection between both the actions. If possible, Political as well as legal
arrangements that drift apart from the realms of legality should be replaced by
arrangements that promote justice and thus well-being in a better way.

1.6 Essential features of law.

1. An authorization that is passed by the state constitutes law. It has a strong backing
of coercion which is generally physical in nature. The breach of which is
punishable by law. It basically represents the will and purpose of the state.
2. The Social, political, and economic relations within the society are depicted by
law. It defines the rights and duties that citizens have to abide towards one another
and towards the state.
3. Government fulfills its promises toward the people only with the help of law.
There is reflection of the sociological need of society in present scenario.
4. Both Law as well as morality is in close relationship with each other. Generally,
the moral principles of society are basis of law. Both successfully attempt to
regulate the conduct of the individual in society.
5. Law and morality have a great influence on each other. The moral ideas of the
people must be represented effectively by law. But many a times good laws help
to create the moral conscience within the society and effectively create and try to
maintain conditions as much as possible to enhance the development of morality.
The classic examples of this can be that of awareness and spreading of education
at grass root level in India. From this we can easily deduce that the value system
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can hardly be separated from the political authority. At large, the main aim of any
state is to promote welfare in the society.

The formulation and making of such of laws will in turn raise the standard of morality
among the people. Thus the status of laws in a state can depict the standard of morality in
the state. Earlier Philosophers and politicians never even attempted to draw a line of
difference between morality and law.

Republic by Plato is an excellent treatise covering majorly on both fields of politics n

ethics. In ancient India, the spiritual word Dharma signified both the aspects of law as
well as morality.

According to the general society, law is not just considered to be the direction of the apex
political authority in the country but also represents the idea of standard of morality in the
society.

People also play a major role in this process. People obey law only and only if their moral
sentiments are taken care of. Laws which are not supported by the moral conscience of
the people are liable to become dead letters.2
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 both the fields are complimentary to each other, yet they tend to differ from
each other in their content and sanctions.

Alexey, Robert (1989), On Necessary Relations Between Law

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1.7 Distinction between Law and Morality

Some points of distinction between law and morality may be brought out as follows:

1. While law has its main focus on regulating and controlling external human conduct,
Morality focusses on both the internal as well as external aspect. In short it looks after
overall development of man.
2. Law is generally universal in nature; it is usually applied to all the people of society.
On the contrary, morality is quiet dynamic. It changes from man to man and age to age.
3. Laws are meant to be definite and precise while morality is a bit vague and lack
precision.
4. Law has to enforce upon the society by the supreme political authority in the society.
But in case of morality, it is neither framed nor enforced.
5. Law falls under the field of jurisprudence; on the other hand morality is a branch of
ethics.

As we come to conclusion, It is best defined by the definition 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.3
This definition actually clears the concept of exact connection between the two entities of
law and morality.

The few points of relationship between morality and law can be mentioned in brief as
follows(1) Due to the existence of laws which are unjust in nature (e.g. slavery) helps us to prove
that morality and law lack similarity and have their own unique paths.
(2) But at the same time, the laws which exist to defend intrinsic values which include
laws against murder, rape, malicious defamation of character, fraud, bribery, etc. give us
the hint that both can work hand in hand up to a certain extent.

Gilchrist, Fred ed. Morality and the Marketplace. Hillsdale, MI: Hillsdale College Press, 1994.

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(3) Stating of what is a wrong conduct and the subsequent punishments is the major work
that is done by law. Even though courts and the legal system dont ignore the intention or
state of mind of the person, the law cant normally look after the desires of all the
individuals. The reason for this is that most of the time morality passes judgment upon
the intentions and character of everyone; it has a much different and wider scope
compared to the law.
(4) By the means of punishments, law partially tries to govern the conduct of individuals
in society. When Morality is internalized, it governs the behavior of everyone without
compulsion.
(5) Morality influences the field of law in a way that it provides the factors for making
groups of immoral actions illegal.
(6) Law is nothing but an attempt of public expression of the value system that is codified
in a peculiar way on the basic principles of morality which is a general acceptance of the
society. In such a way it helps to guide the lawmakers of the next generation by giving
them a clear outline of the values society wants taught to its children.

In the project, since the collection of data through any type of primary source was not
feasible, the researchers have mainly gathered information through the secondary or
external source of data. It has been obtained from either a published sources or from
people who have already researched on the subject. Among the sources, there is lack of
data obtained through personal documents. Major chunk is obtained through public
documents. Apart from the books available in the library, the researchers have tried their
best to include records, statistics, news articles and sources from journal.

During the course of the research, the team adopted a combination of methods to make it
as extensive as possible. The major portion of the study was done by the projective
technique. In this, the team has made efforts to put forth its own thoughts about the topic.
However method of case study has also been adopted whereby the team has studied and
researched upon the different case laws and articles. It has also studied in detail about
various countries of the world where the confect can be easily identified. A minimal part
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of the project has also been done on the observation method which has resulted in
establishing a proper relationship between the two varying fields of the subject.

Through this project, the members of the team have successfully tried to answer a few
questions.
They are as follows:
1. What is Law?
2. What is Morality?
3. Is there any relationship between Law and Morality?
4. If yes, then is it of any significance?
5. Which is greater in scope and objectivity?
6. Which has greater influence on society?
7. Why is there a conflict between the two?
8. Which prevails in case of conflict?
9. What is the current scenario in different parts of the world?
10. What is the situation in India regarding this topic?

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What is LAW and what is MORALITY?- Vaibhav

Sharma
Law is the body of official rules and regulations, generally found in constitutions,
legislation, judicial opinions, and the like, that is used to govern a society and to control
the behavior of its members, so Law is a formal mechanism of social control. Law is one
of the basic and most important institutions of the society. No society could exist if all
people did just as they pleased without any regard for the rights of others. It is also
essential for the members of society to recognize that they also have certain obligations
toward one another. The law thus establishes the rules that define a person's rights and
duties. The law also sets penalties for people who violate these rules, and it states how
government shall enforce the rules and punish the defaulters. However, the laws enforced
by government can be changed. In fact, laws frequently are changed to reflect changes in
a society's needs and aspirations of the society.
In most countries, various government bodies, especially police agencies and courts,
ensure that the laws are obeyed. Because a person can be penalized for disobeying the
law, most people follow them due to their deterrent effect. Justice is a moral standard that
applies to all aspects of human conduct. The laws enforced by government have usually
had a strong moral element, and so justice has generally been one of law's guiding forces
in the development of law. But governments can, and sometimes do, enforce laws that
people believe to be unjust. If this belief becomes widespread, people lose respect for the
law and may even disobey it. But in democratic societies, the law itself provides ways to
amend or abolish unjust laws through amendments by the legislatures

2.1 Definitions of the LAW

- John Austin (English jurist born 1790)"Province of Jurisprudence Determined"

A body of rules fixed and enforced by a sovereign political authority.
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This definition shows law is enforced by a supreme authority which is elected by the
people for whom the laws are constructed. It also gives the idea that law is a fixed set of
rules and applies uniformity to all the people.

-Aristotle (Greek philosopher born 304 BC)

An embodiment of Reason, whether in the individual or the community
The striking feature of this definition is that it states that law is based on reason and logic.
It also says that the reason on which the law is based is same for every individual and the
community.

-Oliver Wendell Holmes (American judge and jurist born 1841)

"The Path of the Law" in Collected Papers, 1920
"The prophecies of what the courts will do ... is what I mean by the law"
The main feature of this definition is that it takes into account the aspect of the judiciary.
It recognizes the law which is interpreted by the different jurists and judges while giving
various judgments.

-Thomas Hobbes (English philosopher born 1588)

"Law is the formal glue that holds fundamentally disorganized societies together."
The peculiar characteristic of the definition is that is recognizes the role of law in
attaining and maintaining the diverse groups and the various distinct sections of the
society in complete harmony and peace with each other.
-Glanville Williams Learning the law
"Law is the cement of society and also an essential medium of change. Knowledge of
law increases one understands of public affairs. Its study promotes accuracy of
expression, facility in argument and skill in interpreting the written word, as well as
some understanding of social values".
This definition is self explanatory in nature. It tells us about the role and function of the
law. It also tells us about the role of the law in understanding of the society.

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-Max Weber (German Sociologist born 1954)
"Lawexists if it is externally guaranteed by the probability of coercion (physical or
psychological) to bring about conformity or avenge violation, and is applied by a staff
of people holding themselves especially ready for that purpose."
This definition takes into account the sociological aspect of the law into account. It tells
us about how the law affects the behavior of the individuals in the society. It also
recognized the psychological influence of the law.

2.2 Sources of the law

Sources of law means the origin from which the various rules which govern the human
conduct come into existence and derives legal force or binding characters. It also refers to
the sovereign or the state from which the law derives its force or validity.
Several factors of law have contributed to the development of law. These factors are
regarded as the sources of law.

-Precedents
Precedent is one of the main sources of law. The judgments passed by some of the
learned jurists became a significant source of law. When there is no legislature on
particular point which arises in changing conditions, the judges depend on their own
sense of right and wrong and decide the disputes on the principles of justice, equity and
good conscience. Such decisions become authority or guide for subsequent cases of a
similar nature and they are referred to as precedents. The judicial precedent is a judgment
or decision of a court of law cited as an authority for deciding a similar state of fact in the
same manner or on the similar principle or by analogy. Precedent is more flexible than
legislation and custom. It is always ready to be used. It also provides uniformity,
efficiency and also helps in preventing conflicting decisions in various cases. It provides
stability to the entire judicial system.

-Customs
A custom is a rule which in a particular family or in a particular district or in a particular
section of society, class or tribe, has from long usage obtained the force of law. A custom
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is a law not written, which being established by long use and consent of our ancestors has
been and daily is put into practice. Custom as a source of law got recognition since the
emergence of satiny on the horizon of jurisprudence. It is an exemption to the ordinary
law of the land, and every custom is limited in its application.

-Legislation
Legislation is that source of law which consists in the declaration of legal rules by a
competent and sovereign authority. Legislature is one of the most common sources of
law. Legislature frames new laws, amends the old laws and cancels existing laws. In
modern

times,

this

is

the

most

important

source

of

law

making.

The

term legislature means any form of law making body. Its scope may be restricted so a
particular form of law making. It not only creates new laws, but it also sweeps away
existing inconvenient rules.

-Statutory interpretation
Interpretation is one of the most important functions of the court. The process of
ascertaining the meaning of letters and expressions by the court is either interpretation or
construction. Interpretation is the process in which the court seeks to ascertain the
meaning of a particular legislature. It is through interpretation; the judiciary evolves the
law and brings the changes in it. It is also essential to remove the defects in the
legislature.

2.3 Role of LAW in society

1. The role law plays in society is to guarantee the rights of those who are weaker
either physically or socially in the given social structure. Laws were enacted by
elected representatives of the social group in order to protect the rights of life and
property from those in a society who would use their prestige, wealth and
manipulation of arms to restrict the rights of others.
2. Without laws, society would be at the mercy of anarchists whose prime motive is
to disrupt the orderly progress of the society. Laws are written to be followed and

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applied equally to all people in a given society to ensure that no one feels abused
by his fellow countrymen and to protect members from external aggression.
3. The law also plays an important role in providing an equitable, peaceful and
harmonious environment for the overall development of an individuals
personality and society as a whole.
4. The very existence of law makes it possible for man to make significant
developments in various fields and unravel the mysteries of the nature, thereby
contributing to the development of science and technology.

2.4 What is MORALITY?

Morality is the belief or recognition that certain behavioral traits are either good or
bad. Some morals are very easy to accept and only a small section of the society might
question or reject them. These people may be good or bad, the mere act of rejecting a
socially accepted moral of a particular time is in no way an indicator of the goodness of
the people Morality is one of humanity's main philosophical preoccupations but it doesn't
belong so much to philosophy as to religion; it is what gives religions their universal
power of faith.
The very concept of morality is different for each; no philosophy serves morality but for
philosophers morality should serve philosophy. For religion, morality is identified with
God himself, thus it is the supreme value. Morals are actually certain yardstick standards
in our society which work as prescriptions to human behavior. The starting of preaching
of moral values start from the very basic unit of our society i.e. family. As in a Hindu
family, young people touch the feet of elders to wish them and to show respect. There is
no logic behind these morals but still these morals prevail in our society, as they have
been accepted as conventions by the particular group of society that follows them.

2.5 Definitions of MORALITY

-Winston Churchill
A man does what he must - in spite of personal consequences, in spite of obstacles
and dangers and pressures - and that is the basis of all human morality.

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The definition lays the stress on the qualities a person should possess for the benefit of
the mankind as a whole. It recognizes that there will be obstacles faced by him in his
pursuit to achieve these morals values.
-Albert Einstein
Morality is of the highest importance - but for us, not for God.
The definition given by the undisputedly the greatest scientist of the twentieth century,
lays emphasis on the fact that the moral values are for good o0f the society as a whole
and not for one religion only.
-Socrates
A system of morality which is based on relative emotional values is a mere illusion, a
thoroughly vulgar conception which has nothing sound in it and nothing true.
This statement is able to clarify that the moral values are not based upon any arbitrary
principles, but are rather based on the established and universally recognized facts.
-Henry Wadsworth Longfellow
Morality without religion is only a kind of dead reckoning - an endeavor to find our
place on a cloudy sea by measuring the distance we have run, but without any
observation of the heavenly bodies.

The above statement about morality by the famous poet establishes a direct relationship
between morality and religion. It emphasizes the fact that religion the real binding force
behind the different moral values.
-His Holiness the Dalai Lama
Ethics and morality can arise simply out of recognition of our mutual
interdependency, leading in turn to such secular virtues as respect, caring, and
compassion for others.4
His Holiness Dalai Lama in the above statement has said that the basis of the moral
values need not necessarily be religion, but they simply arise out of mutual respect and
care for each other.

His holiness the Dalai Lama addressing a gathering in Costa Rica on 8 May 2009.

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2.6 Origin of MORALITY

-The development of morality is a process closely tied to the sociocultural evolution of
different peoples of humanity.
- Some evolutionary biologists believe that morality is a product of evolutionary forces
acting at an individual level and also at the group level.
-Some believe that the set of behaviors that constitute morality evolved largely because
they provided possible survival and/or reproductive benefits (i.e. increased evolutionary
success).
-Morality is a set of self-perpetuating and ideologically-driven behaviors which
encourage human cooperation. Biologists contend that all social animals, from ants to
elephants, have modified their behaviors, by restraining immediate selfishness in order to
improve their evolutionary fitness.
-Human morality though sophisticated and complex relative to other animals, is
essentially a natural phenomenon that evolved to restrict excessive individualism that
could undermine a group's cohesion and thereby reducing the individuals' fitness.
- Many human beings used to and still do believe that morality comes from a god. Some
also believe that only good morals are from god and bad morals are from demons, devils.

2.7 MORALITY and RELIGION

Morality and religion is the relationship between religious views and moral values.
Religions have value frameworks that guide adherents in determining between right and
wrong. These frameworks are outlined and interpreted by various sources such as holy
books, oral and written traditions, and various religious leaders.
Religion and morality are not synonymous. Religion and morality "are to be defined
differently and have no definitional connections with each other. Conceptually and in
principle, morality and a religious value system are two distinct kinds of value systems or
action guides.5
Value judgments can vary greatly between religions, past and present. Religions such
as Christianity, Islam, and Judaism typically derive ideas of right and wrong by the rules
5

The Westminster Dictionary of Christian Ethics

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and laws set forth in their respective holy books and by their religious leaders. On the
other hand, religions such as Buddhism and Hinduism generally draw from a broader
canon of work. There has been interest in the relationship between religion and crime and
other behavior that does not adhere to contemporary laws and social norms in various
countries. Studies conducted in recent years have explored these relationships, but the
results have been mixed and sometimes very vague and contradictory. The ability of
religious faiths to provide value frameworks that are seen as useful is a debated matter.
Religious commentators have asserted that a moral life cannot be led without an absolute
lawgiver as a guide. Other observers assert that moral behavior does not rely on religious
tenets, and secular commentators point to ethical challenges within various religions that
conflict with contemporary social norms.
Within the wide range of ethical traditions, religious traditions co-exist with secular value
frameworks such as humanism, utilitarianism, and others. There are many types of
religious values. Modern monotheistic religions, such as Islam, Judaism, Christianity, and
to a certain degree and others such as Sikhism, define right and wrong by the laws and
rules set forth by their respective gods and as interpreted by religious leaders within the
respective faith. Polytheistic religious traditions tend to be less absolute. For example,
within Buddhism, the intention of the individual and the circumstances should be
accounted for in order to determine if an action is right or wrong. A further disparity
between the morals of religious traditions is pointed out by Barbara Stoler Miller, who
states that, in Hinduism, "practically, right and wrong are decided according to the
categories of social rank, kinship, and stages of life. For modern Westerners, who have
been raised on ideals of universality and egalitarianism, this relativity of values and
obligations is the aspect of Hinduism most difficult to understand".6
Religions provide different ways of dealing with moral dilemmas. For example, there is
no absolute prohibition on killing in Hinduism, which recognizes that, it "may be
inevitable and indeed necessary" in certain circumstances. In monotheistic traditions,
certain acts are viewed in more absolute terms, such as abortion or divorce. Religion is
not always positively associated with morality. Philosopher David Hume stated that, "the
6

Barbara Stoler Miller (August 8, 1940 April 19, 1993) was a scholar of Sanskrit literature. Her
translation of the Bhagawad Gita was extremely successful and she helped popularize Indian literature in
the U.S.

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greatest crimes have been found, in many instances, to be compatible with a superstitious
piety and devotion; Hence it is justly regarded as unsafe to draw any inference in favor of
a man's morals, from the fervor or strictness of his religious exercises, even though he
himself believe them sincere.7

2.8 Role of MORALIY

-A civilized society requires continuous influx of young citizens having strong base of
moral character which enshrines values that bring out empathy for the society as a whole.
- Morality, compassion, empathy, is an attitude toward the weak. The strong don't need
morality in order to function; common sense is enough.
- All behavior is judged based on how well or how poorly it fulfills our basic and higher
human responsibilities. These obligations come in the form of human instincts which
create our entire most important daily and life long behavioral goals.
- These instinctual drives, forces, feelings and their accompanying mental yearnings are
satisfied or fulfilled through the proper behaviors which are pre-designed to relinquish
them.
-The democratic view of justice is based on compassion rather than on punishment. If one
person guilty of horrendous crimes is hidden among the innocent and it is impossible to
detect him. In a totalitarian society the whole group may be perpetually imprisoned or
even liquidated just to make sure that the guilty one doesn't escape. In a society where
democracy prevails, the group will be released sooner or later because "It is better to
release one hundred guilty than to punish one innocent.
-The most apparent role of morality is in setting a standard for the individuals to consider
as a benchmark to live up to and to follow in the daily routine. It also has contributing
towards formation of a moral outlook among the masses.

David Hume (7 May 1711 25 August 1776) was a Scottish philosopher, historian, economist, and
essayist, known especially for his philosophical empiricism and skepticism.

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CONFLICT BETWEEN MORALITY AND LAWSaras Muzumdar

In history, over the span of time, there was no point in time that raised doubts over we
there law led to reforms of principles of value system or depicted the reformation. It is
not the type of scenario that involves chicken or egg. On contrary, blockage often misses
the dynamism which is huge between law and morality. This ultimately proves to be a
pointless distraction in the subject.

3.1 Illustrations from the States

While we discuss the movements for equality on social and political fronts, the most
suitable example between blacks and whites in the United States, the chicken or egg
paradox might compel oneself to go on a search to determine the origination of that
moment. This is basically to see whether the law has influenced morality more or is it that
whether morality has greater impact on the law. While the discussion might be
interesting for a history course, the larger dynamic might be lost so let us lay aside the
origin quest and instead look at the dynamic itself. A quick browse of history of United
States would depict that sometimes laws did lag the important aspect of indicator for
public morality and sometimes laws preceded a change in public morality.
For example, In the Brown v. Board of Education8 case, several children of blacks sought
admission in public schools that needed division based on race. The plaintiffs alleged that
segregation was unconstitutional under the Equal Protection Clause of the Fourteenth
Amendment.

The Holding and Rule given by lord Warren was that the race-based segregation of
children into separate but equal public schools violates the Equal Protection Clause of
the Fourteenth Amendment and is unconstitutional. Segregation of children in the public
schools solely on the basis of race denies to black children the equal protection of the
8

Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954).

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laws guaranteed by the Fourteenth Amendment, even though the physical facilities and
other may be equal. Education in public schools is a right which must be made available
to all on equal terms.

This decision in 1954 lagged indicator of public morality. Efforts were made to achieve
political and civil equality between blacks and whites preceded the decision but the
decision itself far exceeded the public sentiment at the time. The lagging indicator
argument would hold that the public had already decided to support the issue and the
decision reflected that change in public morality. Yet, the Brown Decision went further
than the public initially wanted to go. One prominent historian compared the decision to
the Supreme Court establishing a beachhead for civil rights but then quickly abandoning
it by failing to create a mechanism for compliance. Here the Supreme Court clearly
established a position in advance of the public and it took some time for the public to
catch up. The law set a public standard of morality that the modern civil rights
movement appealed to and used to advance a new moral standard of equality. Like the
Brown decision, the history of the Montgomery Bus Boycott 9 and the civil rights position
on Separate But Equal both illustrate the use of the federal and state laws by a group
to advance their social agenda.
A converse example is the Roe v. Wade10 Decision of 1973. Once again the Supreme
Court decision exceeded what the public was willing to support in regards to abortion in
1973 based on the number of anti-abortion laws at the state level. However, the
decision itself led public morality toward the acceptance of abortion. Roe v. Wade was
not a lagging indicator otherwise support for abortion would have led to the removal of
state laws.

The Montgomery Bus Boycott was a protest by the African-Americans about the buses in the
Montgomery area.
The buses had a policy that white people sat at the front and African-Americans sat at the back. The
African-Americans were angry because they couldn't walk through the White's 'zone' and that they had to
pay at the front of the bus, get out of the bus and then get back in through a rear door. Sometimes the bus
driver would drive away before they could get back in.
10
Roe v. Wade, 410 U.S. 113 (1973), is a landmark decision by the United States Supreme Court on the
issue of abortion.

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The point is that the whole chicken or egg question is a fools errand. Laws can and do
shape public morality for good or bad. Libertarians often argue that social
conservatives must win the hearts and minds of the American people before they can
legislate morality. Those libertarians fail to realize that laws are a means to winning the
hearts and minds of the American people. While the laws do not operate in a vacuum
and must be supported with social efforts designed to advance public morality, they do
play a key role and can lead to moral reform.11

These two examples are of stark importance while studying the relation between law and
morality. These two examples are in contrast of each other but they explain the situation
in the best way possible. A layman could get a rough idea of what is tried to convey in
context of the relation between the two of them.
Currently social liberals all over are trying to seek legal precedents with the aim to
advance homosexual marriages. The decision of the apex court in support of homosexual
marriage along with federal and state laws to support it will be extensively used by the
left as their trump card to advance their plan and to normalize the practice of
homosexuality just like they normalized abortion on demand. It is not inappropriate for
social conservatives and others to seek to use the law to protect and advance their
position.
Because every law springs from a system of values and beliefs, every law is an instance
of legislating Morality. Further, because a nations laws always exercise a pedagogical or
teaching influence, law inescapably exerts a shaping effect over the beliefs, character, and
actions of the nations citizens, whether for good or ill. Some have the belief that those
who seek to separate morality from law are in pursuit both of the impossible and the
destructive.

11

Tocqueville, Alexis de (1805-1859). Democracy in America. The Henry Reeve text as revised by Francis
Bowen, now further corrected and edited with introduction, editorial notes, and bibliographies by Phillips
Bradley; foreword by Harold J. Laski. New York: Knopf, 1945.

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All laws, whether prescriptive or prohibitive, legislate morality. All laws, regardless of
their content or their intent, arise from a system of values, from a belief that some things
are right and others wrong, that some things are good and others bad, that some things are
better and others worse. In the formulation and enforcement of law, that question is
fundamentally important because not all systems of morality are equal. Some are wise,
others foolish. Few are still in their first incarnation, nearly all having been enshrined as
law at some time or place, often with predictable results. For better or worse, every piece
of legislation touches directly or indirectly on moral issues, or is based on moral
judgments and evaluations concerning what it is we want or believe ought to be, what it is
we want or believe we ought to produce and preserve.
Because law is not a substitute for parental authority, one must not therefore also argue
(as some do) that moral education is the function of parents only and not of the state. The
fact that parents teach morality does not mean that law does not or must not. Parents and
law share at least this: they function inescapably as moral educators, whether for good or
evil. In cases where parents fail to perform this task wisely or well a not uncommon
occurrence law must function in this capacity all the more. The fact that morality is
meant to be implemented by individuals does not mean that there must be no public
morality, no civil, social, or legal standards of conduct. The fact that morality has a
personal dimension does not mean it can have no social or political dimension. Nor does
the existence of personal morality do away with the need for public morality.12

There are many issues which need to be discussed about the exact nature of relationship
between law and the value system in a democratic state like that of India. Within them
are that can the legislation depict moral principles, or whether interpretation of laws
within the country should be made by judges in light of moral values and principles or
whether laws should enforce morality or whether laws are binding if they do not reflect
moral principles, whether it is moral or not to disobey bad laws, and what gives law its
authority.

12

Article ID: DE206\By: Michael Bauman

This article first appeared in the Volume 21 / Number 3 issue of the Christian Research Journal.

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3.2 Aspects of Law Not Based on Morality

First of all, as is the thinking of a number of people, few of the laws are administrative in
nature wherein they induct behavioral conduct for purposes of procedures that could have
been written in a different or opposite way from a moral or socially useful point of view.

Example- The common example is traffic rules about the side of the road on which one is
to drive. Apart from consistency with bordering neighbors, it does not matter from a
moral standpoint which side a country adopts, as long as the choice is made among
equally right options, though once a side is chosen by law, it is generally prudent, and
morally obligatory without some good reason to the contrary to abide by the choice.
These laws are not based on morality, in terms of their specifics. They are moral because
they are a way of promoting social benefits of a certain kind in an optimal way.

Second argument is that some laws are immoral, usually because they are unfair but
sometimes because they are counterproductive or harmful; in some cases, egregious and
reprehensible.

Example- Many laws about Jews in Nazi Germany and many laws concerning women
and blacks in early U.S. law were morally wrong. Many apartheid laws in South Africa
were morally wrong. But there have also been government programs set up by law that
simply mistakenly harmed the people they were intended to help, such as aspects of the
welfare rules that ended up trapping people in poverty rather than assisting them to
escape it.

Even if the contents of a particular law are not unjust, Legal system can also have wrong
or immoral consequences which lack in adequate laws.

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Example-laws concerning evidence and procedure in courtrooms often lead to acquittals
of obviously guilty defendants, and sometimes to convictions or continuing sentences and
punishment of known or likely innocent ones.
There is no reason to believe that just because a law passes, it is for the best or that it is
right or moral, even if the people passing it think it is. If one were to be charitable about
legislators, one might perhaps be able to argue that they pass those laws they believe to
be right, whether those laws actually are right or not, but there is sufficient evidence
legislators will often pass laws for political reasons -- to win or keep political support
from those whom the law favors or to whom it panders -- even though they know the
laws are bad or wrong. Either way, however, sometimes bad or immoral laws get passed
which are perfectly legal.

Third, not all morality is enshrined in law because law is in a sense "incomplete". Many
unfair and wrong business practices are not anticipated and therefore not made illegal
until someone invents and uses them in a way that clearly mistreats others. These
practices are wrong and immoral from inception, but not illegal until law "catches up" to
them. In a sense morality is "complete" and applies to all acts, but the law typically is
"incomplete" and only applies to behaviors legislation has already addressed, or that the
courts can interpret to have been addressed by implication in existing law. Law has to be
"invented" or manufactured; morality only has to be recognized. And in the creating of
specific laws with specific wording, loopholes creep in because it is difficult to
predetermine and specify those and only those acts intended to be covered. Morality does
not have loopholes. It is probably impossible to make a complete set of laws that
anticipate, enumerate, fully describe, and forbid every possible specific wrong behavior.

It might be possible to have general legal principles that distinguish all behaviors that
should be legal from those which should not, in the same, or similar, way that correct
general moral principles might distinguish between all morally right and all morally
wrong acts, but it is not likely that either moral principles or legal principles can lead to a
complete and specific (predetermined) enumeration of each and every right act in every
circumstance.
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Fourth, not all morality should be enshrined in law, because enforcing some morality
would be far worse than not enforcing it.

Example- Even if it might be wrong for someone to lie in bed an extra half hour rather
than having a good breakfast or getting to work on time, or even if is wrong for a child or
husband to leave dirty clothes on the bed or floor, or even if it is wrong to break a prom
date at the last minute for no good reason, those transgressions are not grounds for
sending in the police.

Liberty and autonomy are important values and they sometimes require letting someone
make a mistake or do the wrong thing -- as long as the wrong that is done is not so bad or
so costly that civil society has a legitimate interest to prevent it. There are sometimes
disagreements about where the line should be drawn, but there are clearly some actions
where autonomy is more important than being forced to do what is right by law, and there
are clearly some actions where prevention of harm overrides autonomy and liberty. While
society has a legitimate right to enforce morality in preventing great harm (or cost), it
need not, and should not, make everyone do the right thing all the time.

In cases where autonomy overrides prevention of wrongdoing, the law should not require
people to do what they ought to. While it is wrong for people not to do what is right, it is
worse or "more wrong" for the law to get involved in those situations where either
autonomy and privacy are more important than enforcing right behaviors, or in those
cases where police or other government agencies will make things even worse by trying
to enforce right behaviors.

There are some cases where even if a moral breach is bad for society, the social costs of
trying to enforce morality in such cases would be worse than even the bad breach. Hence,
martial law is not the sort of thing democratic societies generally tend to have, even if it
would make streets safer; wire taps are not permitted for just any speculative purpose;
confessions cannot be coerced; and guilt must be proved by the prosecution beyond
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reasonable doubt, even if guilty people sometimes go free, because we have made the
decision that it is better to free the guilty in cases difficult to prove reasonably than to risk
convicting the innocent. Again, people disagree about whether the social costs of
enforcement of some potential moral breaches are worth it or not, but a guiding principle
seems to be that the law should not try to enforce moral principles where the enforcement
efforts are (seriously) worse than the breach of principles would be, even when the
original infraction itself is seriously bad.

Fifth, people disagree about moral issues. People also sometimes disagree about which
laws should be created or kept, sometimes on moral grounds, sometimes on merely
prudential or practical grounds where different consequences are predicted. When moral
viewpoints conflict or are contradictory, law, unless it is to be contradictory itself, cannot
reflect the morality of different people.

Example- in India, Constitutional rights will sometimes even prevent law from
conforming to the wishes of a simple (even substantial) majority of people or their
representatives.
This is sometimes stated as "morality is subjective."13 But disagreement can be about
objective matters as well as subjective ones, when it is difficult or impossible to know or
conclusively demonstrate the correct answer. Disagreement, even unresolvable
disagreement, does not necessarily make an issue subjective. I will say more about this
later.

Sixth, a special case of the above is that it is often normal for people to believe that the
status quo and traditional practices are what is morally right. It often is very difficult,
especially for those who benefit from current practice, to notice or see there is something
wrong with it, let alone agree with that assessment. Hence, they tend to see efforts for
reform as unnecessary, destructive of a well-functioning system and social order, or even
morally wrong. It is one view of law that it tends to favor existing power structures and
13

Raz, Joseph (1979), The Authority of Law (Oxford: Clarendon Press)

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relationships, not necessarily or not only through some sort of Machiavellian attempt to
maintain power through evil means, but because existing systems seem to work well
(enough) and because they seem psychologically to be normal and reasonable, especially
to those in power.

3.4 Aspects of Law Based on Morality

Nevertheless, in spite of all of these reasons, there seems to be some relationship between
law and morality, or at least it seems there ought to be because we talk about unfair or
unjust laws, laws that are immoral, laws that ought not to be obeyed or enforced; and we
typically do not mean just that they are unconstitutional, but that they are
counterproductive to their intended purpose or that they are bad or harmful or morally
unfair or unjust laws.

All cultures are expressions of deeply rooted values. Cultures are the historical outgrowth
of those values the historical human consequences of those values values that
sometimes lead to compassion, beauty, war, deprivation, heroism, or degeneration. Law
is a function of culture all cultures have law which means that law is a function of
values or morality. Law without values is cultural suicide, which is what those who wish
to separate the one from the other are going to produce, whether they wish to or not. In
our age of increasingly complex moral problems, where technological advances outstrip
moral growth and understanding, we must do our level best to cultivate the wisest
persons, the noblest motives, and the highest actions of which we are capable. We need to
make far better use of the law as tutor and moral ennobler. We must remind ourselves
repeatedly that the best habitat in which to raise ennobled citizens is a well-ordered
society, one in which law is rooted in morality. We dare not forget that law is both an
expression and shaper of the conscience of a nation. Consequently, the near-sighted and
misguided movement to separate law from morality is as dangerous as it is impossible.

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Both for our nation and for us as individuals, our character is our future. Morality is
destiny.14

We also deliberate about what the law ought to be and about which laws ought to be
written, which bills passed or amended, and we believe that it matters that we try to get it
right, not that any law will do as well as any other or that it does not matter what the law
is. We say "there ought to be a law" about some behaviors that we think are wrong to
permit. Law does not seem to be just the occasional coincidental similarity or accidental
overlap with moral principles or with descriptions of ethically right acts that would
follow from moral principles.

Laws are not generally just randomly chosen out of a set of all possible behavioral
proscriptions or prescriptions, though it sometimes seems that some particularly flawed
or foolish laws may have originated that way. Normally laws are desired to be crafted
carefully and with regard for our moral notion of justice and fairness, where those
concepts apply, and with utilitarian regard to their fostering good, rather than harmful
consequences.

For example, the Preamble to the U.S. Constitution, in giving the purpose of that
document, and therefore of the government (legislation, administration, and judicial
system) it establishes, says:

"We the People of the United States, in Order to form a more perfect Union, establish
Justice, insure domestic Tranquility, provide for the common defense, promote the
general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do
ordain and establish this Constitution for the United States of America." 15
Now, "more perfect", "justice", "common" (in the sense of distribution), "general
welfare", and "blessings of liberty", as well as the forms and limits of "liberty" itself, are
14

Geisler, Norman L. and Frank Turek. Legislating Morality. Minneapolis: Bethany House, 1998.

15

, The Preamble to the U.S. Constitution

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moral concepts, as are the proper balance among them and the interpretation of "domestic
tranquility" (in trying to determine individual rights versus keeping social order,
preventing crime, and capturing and prosecuting criminals). Most of the major purposes
of the Constitution are to help us be law-abiding so that we are a better country, not just
an orderly or merely obedient or efficient country. Hence, it would be remiss, and wrong,
to make laws or to try to interpret laws in court without any regard to their moral
meaning, moral significance, or moral consequences insofar as these impact justice,
liberty, general welfare, the common defense, and domestic tranquility.

And it would seem that any constitution without a moral purpose, even if one different
from the U.S. Constitution, would be merely an arbitrarily pointless or meaningless
formal document establishing an equally pointless formal system. There could be such a
system of law and those who pronounce judgments, but it would not be a system of
"justice." And it would not, except by chance, promote the general welfare or any other
moral virtue.

The irony is that the reason stated for giving little judicial credence is that it is not
specific enough, when its very point is that enumerating specific rights is too narrow a
way to think of "rights" because rights do not come from being named by the
government. This goes back to the point made near the beginning of that morality is
complete whereas law is almost always bound to be incomplete by the very nature of its
specificity in trying to enumerate those acts which are right or wrong.
The authors of the Bill of Rights16 were clearly concerned that governments not abrogate
moral rights that were not specifically listed in the Bill of Rights, and they were
concerned that moral rights not specifically listed were known to be still outside the
province of government interference or usurpation.
16

The Bill of Rights is the collective name for the first ten amendments to the United States Constitution.
These limitations serve to protect the natural rights of liberty and property. They guarantee a number of
personal freedoms, limit the government's power in judicial and other proceedings, and reserve some
powers to the states and the public. While originally the amendments applied only to the federal
government, most of their provisions have since been held to apply to the states by way of the Fourteenth
Amendment.

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This is an attempt to cast some light on what the relationship is and ought to be between
law and morality. Given that some laws are immoral, that some laws reasonably are
neutral with regard to morality, and that there are institutional limitations to enforcing
some aspects of morality, the interesting question should be, not what the relationship is
between law and morality, but what it ought to be.

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TRACING THE CLASH BETWEEN LAW AND

MORALITY IN DIFFERENT COUNTRIESIsha Singh
Law is different from morality but one can also not ignore the fact that morality cannot be
completely separated from law. It is a fact that law has developed from the vestiges of
morality. Law at all times and places have in fact been profoundly affected both by
conventional morality and ideas of social aggregations and also by the forms of
enlightened moral criticism of these people whose moral horizon has transcended the
morality currently accepted. In Ancient times, what long-practiced customs and moral
standards dictated was taken to be unquestionable authority of the supreme power, the
law of the land. What ethics, morals and prudence conveyed was conceived as the basic
idea of law, but when the interpretation of such customs turned prejudiced, that is when
the clash between law and morality arose.

This chapter talks about the conflict between law and morality for countries in the
Middle East like Saudi Arabia and Iran and it also takes into consideration the country
India. It traces how prejudiced interpretations, stringent norms, unreasonable restrictions
have extinguished the spirit of law. Law and morality are same yet very different from
each other. The Islamic Laws all over the world have been a source of controversy.
Islamic Moral Laws have been called the sickest of all possible laws enforced by a
religious group onto all. The situation in countries like Saudi Arabia and Iran replicates
this conflict in the light of stringent and irrational customs- turned laws. This is explicitly
discussed in details by the researcher as we proceed along in the chapter.

Even countries like India are torn between law and morality with respect to different
aspects of the contemporary world such as legalization of homosexuality, attempt to
suicide, legalization of khap panchayats and legalization of Passive euthanasia which
have been discussed at length in this chapter.

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4.1 THE SITUATION IN SAUDI ARABIA

The politics of Saudi Arabia takes place in a framework of Islamic absolute monarch. The
king of Saudi Arabia is both the head of the state and of the government. The decisions
are made on the basis of consultation among senior members of the royal family, Al Saud
and the religious establishment. The Quran is regarded the constitution of the country and
is the basis of Sharia Law. This royal family is divided by internal disputes and into
factions. The members of the family are the principle political actors of the country and
that gives one enough of reason to conclude that participation outside the royal family is
very limited.
The Quran and traditions of Muhammad are the Countrys Constitution, since there is no
legally binding constitution so, these are subject to interpretation. This interpretation
which is carried out by the person in power can either be lenient or can totally be opposite
to the moral standards of the society. This interpretation is carried out by the Ulema , the
Saudi Religious establishment who play a significant role in the politics of the country.
The head of the country is King Abdullah In Abdul Aziz, who acceded to the throne in
2005. There are no political parties in the country to contest for any sort of elections and
that is what makes Saudi Arabia one of the most authoritarian regimes in the entire world.
Since the basic functioning is backed by religious sentiments and long-practiced
traditions which are better known as Urf therefore, it does not come forward as an
authority that commands obedience; rather people of the state willfully obey the leader,
till the time the rule holds good with the moral conduct that a prudent person is expected
to observe in a society. As soon as the rule falls beyond this prudence and moral conduct,
it calls for a revolt against the authorities as the limited participation of people outside the
Royal family called for a pressure to broaden participation.

This might also ignite a spark to a freedom movement as in the case of Manal Al-Sharif,
a lady in Saudi Arabia who was arrested for driving her brother and his family through
the city. She was supposedly violating the countrys de-facto law against women driving.
It was the religious policeofficially called the Commission for Promotion of Virtue and
Prevention of Vice who arrested the woman. Though women arent legally prohibited
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from driving but, religious fatwas were issued against the act. This is where rule in a
country draws a line, no matter how faint but between law and morality. Driving per se, is
not legally punishable but in a country like Saudi Arabia where women are looked down
upon, always treated lower than men, driving becomes something beyond their reach and
falls out of the purview of the conduct of a reasonable man. This is when rules and laws
though derived from The Holy Book in a country like Saudi Arabia turn sour for its own
people due to prejudiced interpretation. In September 2003, a Scotsman Sandy Mitchell
faced crucifixion in Saudi Arabia. He was beaten and tortured until he confessed a crime
which he never committed. This takes the researcher to claim that law and morality do
clash.
Further substantiating the researcher would want to state that rape as a crime attracts
harsh punishments even in Islamic countries, not for the rapist but for the victim. It has
happened many times that women have been imprisoned for being raped. There are five
offences for which Quran mandates punishment, these are the Hadd Offences and
committing them is disrespect to God. These are:

1. Wine-drinking or alcohol-drinking which is punishable by flogging.

2. Unlawful sexual intercourse which is punishable by flogging for unmarried offenders
and stoning to death for adulterers.
3. False accusation of unlawful sexual intercourse carries a punishment of flogging.
4.Theft is punishable by amputation of either hand.
5.Highway robbery is punishable by amputation or execution if the robbery results into a
homicide.
This is when the punishment awarded is retributive and the rule of an eye for an eye
prevails in the law of the jungle.There are numerous countries in the Middle East which
practice Sharia Law and award punitive punishments for offences like the ones discussed
above.

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4.2 THE SITUATION IN IRAN

Iran is another country in the Middle East which preaches strict Islamic Law and awards
a capital punishment for blasphemy. Politics of Iran takes place in a background of
theocracy guided by Islamist ideology. Iran has a Constitution which was codified in
December 1979 and attracted an amendment in 1989. This constitution defines the
economic, political and social order of the Islamic Republic of Iran and declares Shia
Islam to be the official religion of Iran. The most powerful political office in the
Islamic Republic is that of the Supreme Leader, of which there have been two: the
founder of the Republic, Ayatollah Ruhollah Khomeini, and his successor. This supreme
leader appoints important portfolios of the state including the Commander of the Armed
Forces. The highest authority is the President who comes after the Supreme Leader and
who is elected by universal suffrage. The framework is theocratic where the form of
government is such in which official policy is governed by immediate guidance or by
officials who are regarded as divinely guided. These officials are very difficult to be
questioned and are not answerable to the people of the state. They award revengeful
punishments in the name of religion, in order to teach people a lesson to not ever think of
repeating the very act. Quran prohibits smoking and gambling but, it doesnt prescribe the
punishment of flogging. These overtly awarded punishments are a matter decided on by
these officials which invites a clash between law and the basic moral standards of human
living. Marrying off a young daughter to a 55-year old man, beating up your own wife for
anything but keeping her in check is something the superior sex very easily gets away
with in countries like these where the interpretation of laws is discriminatory.
For instance, in 2001 Iranian officials sentenced three men to flogging not only for illicit
sex, but also for drinking alcohol. In 2005 in Iran, fifteen men were caned in front of a
mosque for gambling. This all was done publicly so that people could all see and fear
this. Even flogging is widely practiced in this province of Indonesia, which is again a
region where Sharia Law is strictly practiced.. Other states include Niger, Nigeria and the
like. In 2005 in Niger, a Sharia Court ordered that a drunkard should be awarded eighty
strokes.

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The authoritarian regime in the Middle East countries backed by religion and The Holy
Book gives much liberty to the senior officials to issue punitive decrees. In countries like
Niger, girls are married off even before they reach puberty. Also, slavery though, it does
not hold good with the moral standards and ethics that a society subscribes itself to, is
openly practiced in countries like Sudan, United Arab Emirates and Niger. These acts
practiced by the Royal family, as in the case of Saudi Arabia or, The Supreme Leader, as
in the case of Iran fall out of the purview of moral customs of the society . Citizens suffer
from mental slavery and brain prisons in the turmoil that occurs in such countries now
and then. The basic question that comes forth is whether this law is morally right or not.
Harsh punishments, punitive penalties like the amputation of arms of individuals engaged
in robbery and the like fall beyond the social norms of a society. The dilemma faced by
the people is that when The Holy Book dictates the legal methods and maxims and
everything that regulates the society then, it ought to be in accordance with their moral
and social conduct , but the interpretation of these laws is such that it falls totally opposite
to the moral customs of the society.

4.3 THE SITUATION IN INDIA

In ancient times there was no distinction between law and morals as law and morality are
so closely related to each other. The term Dharma in India denoted both law and
morality. Manu, the first law giver in the country laid down the provisions in accordance
with the moral standards and customs that prevailed in the society at that point of time.
The distinction between law and morality took birth out of the overtly revengeful
penalties awarded by officials and the immoral conduct that falls out of the ambit of the
moral standards of the society. This clash undermined any sense of true human rights, left
the individual defenceless against unjust laws, and opened the way to different forms of
totalitarianism.
Law is different from morality but one can also not ignore the fact that morality can also
not be completely detached from law. It is a fact that law has developed from the ashes of
morality. As a matter of fact, the Indian Constitution is itself a crystal clear example, our
Fundamental Rights , Directive Principles Of State Policy , all these have the base of
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morality and that morality is molded and shaped in the form of law so that it can be
enforced and implemented by each and every citizens of India. Therefore, with the advent
of time the terms like natural Justice, Justice, Equity, Good Faith and Conscience have
infiltrated into the fabric of law. For instance, untouchability is prohibited by the
Constitution and in pursuance of this prohibition the Government of India has enacted
legislation making its practice a penal offence. This is legally as well as morally correct.
In todays scenario, the relationship between law and morality has become increasingly
relevant as social liberals advance issues like homosexual marriage, suicide attempts,
khap panchayats and euthanasia. There are many such issues which call as to what is
actually the law is and is it actually influenced by morality or not.

Suicide is the act of ending one's own life. It is regarded a sin in many religions and a
crime in some jurisdictions. On the other hand, some cultures have considered it as an
honorable way to escape certain shameful or hopeless situations. On an individual level
the meaning of suicide varies across a range of common subjects. Stated reasons include
concepts such as a reunion with the dead, a need for change from an unbearable situation,
or a desire to cause pain through causing remorse or grief. Multiple motives are common.
In India, attempted suicide is a punishable offence as per Section 309 of the IPC. The
Law Commission has recommended to the Centre that it repeal the obsolete law,
contained in Section 309 of the Indian Penal Code . The Commission, headed by Justice
A.R. Lakshmanan, in its 210th report submitted to the government said that it is
unreasonable to inflict punishment upon a person who, on account of family disharmony,
destitution, loss of a dear relation or cause of a like nature, overcomes the instinct of selfpreservation and decides to take his own life. In such a case, the unfortunate person
deserves nothing else but, sympathy, counseling and appropriate treatment, and certainly
not the prison. The commission submitted that Section 309 needs to be deleted from the
statute book because the provision is merciless and inhuman, irrespective of whether it is
constitutional or unconstitutional. The bone of contention is that whether this Section is
violate of Article 21 of the Indian Constitution or not. This topic is still a subjective but
not a conclusive topic.

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Homosexuality, as a sexual orientation, is defined as "an enduring pattern of or
disposition to experience sexual, affection, or romantic attractions primarily to" people of
the same sex, it also refers to an individuals sense of personal and social identity based
on those attractions, behaviors expressing them, and membership in a community of
others who share them."
According to Section 377 of the Indian Penal Code drafted in 1860, whoever voluntarily
has carnal intercourse against the order of nature, with any man, woman or animal shall
be punishable with imprisonment for life or with imprisonment of either description for a
term which may extend to ten years and shall also be liable to fine. IPC 377 criminalizes
any penetrative sex that is unnatural and does not lead to reproduction, thereby
criminalizing sexual expression by homosexuals, bisexuals and transsexuals. Suggestions
that Section 377 would be reviewed overlapped with hundreds of members of the LGBT
(lesbian, gay, bisexual, transgendered) community dancing and marching through the
streets of five Indian cities to mark the 40th anniversary of the Stonewall uprisings in
New York, now a universal symbol of gay resistance to conservative oppression. The
NAZ Foundation petition was supported by Voices Against 377, comprising 12
organizations across the country. NACO(National Aids Control Organization) demanded
the brawling of Section 377 as it was obstructing effective health interventions. The
172nd report of the Law Commission of India and the recommendations of the National
Planning Commission for the 11th Five Year Plan also claimed decriminalization of
homosexuality. In the last two decades, LGBT activism played a major role in creating
awareness on the issue. In 2006 writer Vikram Seth released a public letter demanding
that the cruel law be struck down. The campaign was supported by a large population and
had demanded the scrapping of the brutal law that punitively criminalized romantic love
and private, consensual sexual acts between adults of the same sex while being used to
systematically persecute, blackmail, arrest and terrorize sexual minorities. All in all, 377
being proclaimed as immorally incorrect was demanded to be shut down by a huge
population of the country.
.
Though India is a perfect democracy, still some of the acts practiced by some nonpolitical organizations and individuals are such that it is against the social norms that a
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society frames itself on. The example of Khap panchayat is one of the examples. Khap
is a group of villages united by caste and geography. Khap panchayats are as old as 14th
century which was started by upper caste jats to consolidate their power and position. The
main rule of the khap says that all boys and girls of the same khap are considered
siblings. These panchayats governs the khap formed by same gotra (clan) families from
several neighboring villages. These are prevalent in Haryana, western Uttar Pradesh and
Parts of Rajasthan. Love marriages are considered taboos in areas governed by these
panchayats. Many young couples who have defied the rules of the khap have been
brutally killed. Khap panchayat imposes its writ through social boycotts and fines and in
many cases these end up either killing or forcing the victims to commit suicide. All this is
done in the name of brotherhood, religion and its honor. It is due to the inherent weakness
of democratically elected Panchayati Raj institutions, Khap panchayats have been
powerful only due to the inherent weakness of democratically elected panchayati raj
organizations

In some Haryana villages, the young girls are routinely threatened, abused and killed all
under Khap verdicts. It is acceptable for the families to feed pesticide pills to the teenage
girls and then dispose of their bodies by burning them without any police records. She is
the keeper of village honor. Sometimes rules are bending for the boys but a girl is never
allowed to bend the rules. If a couple run away then the families risk the boycott and
hefty fines in lakhs of rupees. Even the other women of the house can suffer abuse. This
prejudiced interpretation has led to the clash between law and morality.

The researcher would further want to substantiate the clash between law and morality by
stating the aspect of Passive Euthanasia which is another debatable issue. Passive
Euthanasia has been declared legal by the Honble Supreme Court in the case of Aruna
Shaanbaugh vs. Union Of India. The conundrum whether it is morally corrects or
incorrect still persists. The term "passive euthanasia" used by the Supreme Court in its
verdict on Aruna Shanbaug's case is defined as the withdrawal of medical treatment with
the deliberate intention to hasten a terminally ill-patient's death. This is again perceived
by many in the country as violation of basic and fundamental principles that our morals
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and ethics derived from. Although there is a difference between active and passive
euthanasia, but some people think this distinction is nonsense, since stopping treatment is
a deliberate act, and so is deciding not to carry out a particular treatment. It is also argued
by many that this is nothing but a violation of Article 21 of The Constitution, but then
again the supporters of Passive euthanasia counter argue by saying that the vegetative
state doesnt fall in the ambit of dignified life and its better to end such a life that to live
with it and die with it every second. The enigma is endless and so is the clash between
law and morality.
Since our standards of right and wrong change, so laws too must change in accordance
with such changes. For instances, Sati was declared illegal acts as they did not accord
with our changed standards of virtues or value. Laws must keep pace with the changing
needs and standards of the society and obsolete regulations must be abolished. The clash
between law and morality can only be overcome if laws that regulate the conduct of
people are in accordance with the moral standards and customs which the society
subscribes itself to.

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CONCLUSION- Aditi Seetha

After all the discussion, the relationship and the area of conflict between Law and
Morality could be more easily assimilated. Both the disciplines even though may seem to
have distinct identities, but in reality there exists a grey area between both of them which
is the main cause of the conflict.

The researcher has finally come up with the following conclusions and have been able to
answer the questions that were submitted right in the beginning of the project. These have
been presented in bullets for the convenience of the reader:

-Law is a fixed and authoritative entity. It is socially accepted by the members of the
society and is based on sound principles and conventions. Law comes with an obligation
and commands obedience. The penal aspect of law serves as a binding force and glues the
society as a whole. Laws govern conduct by the way of deterrent effect through fear of
punishment. Morality, on the other hand has become habit-like or second nature, governs
conduct without compulsion. The virtuous person does the appropriate thing because it is
the noble and ethically correct to do.

-Morality is a set of all those moral values which are accepted to be followed by every
member of a social group. Morality is the aggregation of the moral standards and customs
that a society subscribes itself to. Moral values are subject to a wide range of applications
and extremes and some societal moralities can be created from lies and false beliefs. They
are subject to change and most are not absolute. What was once moral, for example
slavery, is no longer moral today and thus we move on toward a more civil and moral
human society. Morality and law as a result, evolve with the changing needs and
standards of the society. Morality to a great extent is influenced by different religions and
their religious outlooks. What is good and acceptable in regard to the particular religion
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becomes the moral value for the followers of that religion. Morals values or what
constitutes morality is highly decided by the guiding principles of the individuals
religion. It is the basic reason of the different notions of morality for different people
even though they may be living in the same regional jurisdiction

-The conundrum still persists, the conflict between law and morality is interwoven
between social, political and legal issues that a contemporary society runs on. The
difference between what laws enforces and what morals dictate is the major issue. The
interpretations of laws might render some scope of answer to this confusion but the
concept still remains very sensitive. What should be legal corresponds to what is really
right or just, that is, what we would call morally right. While on the other hand what is
legally right refers to the existing Law of the country.

-Law and Morality influence each other. Morality or the moral values prevalent in the
region act as a deciding point for the Legal soundness of the laws. The existence of
unjust laws or the laws which do not coincide with the moral values mostly remain in a
state of jeopardy and are subject to the judicial scrutiny and popular revolt in the country.
The laws that violate the morals or ethics of the people need to be ruled out of the legal
system by the way of abolition or amendments.

-Though the issue that law and morality clash with each other is a debatable issue but the
fact that law arose from the vestiges of morality cannot be declined. The existence of
laws that serve to defend basic moral values such as laws against murder, rape, malicious
defamation of character, fraud, bribery, etc. prove that both Morality and Law can work
together for attainment of an equitable society.

-Law is influenced by the international pressures. The acceptances of a particular thing as

a legal entity by various influential countries and international organizations through
enactments or conventions forces a nation to incorporate changes in the legal framework
on the similar lines.

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Morality on the other hand, is influenced by only geographical customs and religious
sentiments, and may not change with the outside interference. The team would further
substantiate this contention by stating the example of most European countries where,
gay marriages are legal entity but then in spite of the social and legal recognition, it is not
considered to be in tune with morality. It is due to the fact that Christianity or the
religious leaders of Christianity which is the dominant religion in Europe has openly
criticized anything against the order of the nature.

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-Law can be a public expression of morality which codifies with the help of a legal
mechanism, the basic principles of conduct which a society accepts. In that way it can
guide the educators of the next generation by giving them a clear outline of the values
society wants taught to its children.

Both Law and Morality are like brain and heart of the human body, both in tune with
each other but are nevertheless in constant struggle of being proclaimed as the superior
one. Both are necessary for each others survival and are interwoven. Hence, the team
concludes that both law and morality go hand in hand. According to the researcher, they
are the two sides of the same coin. Morality gave birth to law. In earlier times, moral
values were considered to be a very superior phenomenon. But the changing standards of
the contemporary world are becoming one of the prominent reasons to cause a shift in the
moral as well as legal ethics.

So, law is being created due to which the moral values of the people change. For example
in India the age limit of consuming alcohol differs from state to state. In Madhya Pradesh
it is 24 years, whereas in Punjab it is 18 years, so, the moral values or the behavior of the
people changes according to the respective laws. We conclude that now due to laws,
moral values are changing. Moral values might have created law but now law is more or
less changing moral values.

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References
1. Arkes, Hadley, First Things: An Inquiry into the First Principles of Morals and
Justice. Princeton, NJ: Princeton University Press, 1986.
2. Bauman, Michael, ed. God and Man: Perspectives on Christianity in the
20th Century. Hillsdale, MI: Hillsdale College Press, 1995.
3. Cord, Robert L. Separation of Church and State: Historical Fact and Current
Fiction. Grand Rapids: Baker Books, 1988. Originally published: New York:
Lambeth Press, 1982.
4. Geisler, Norman L. and Frank Turek. Legislating Morality. Minneapolis: Bethany
House, 1998.
5. George, Robert P. Making Men Moral: Civil Liberties and Public Morality. New
York: Oxford University press, 1993.
6. Kirk, Russell. Edmund Burke: A Genius Reconsidered. Rev. and updated ed.
Foreword by Roger Scruton. Wilmington, DE: Intercollegiate Studies Institute,
1997.
7. Tocqueville, Alexis de (1805-1859). Democracy in America. The Henry Reeve
text as revised by Francis Bowen, now further corrected and edited with
introduction, editorial notes, and bibliographies by Phillips Bradley; foreword by
Harold J. Laski. New York: Knopf, 1945.
8. Alexy, Robert (1989), On Necessary Relations Between Law and Morality,
Ratio Juris 2, pp. 167-83
9. Coleman, Jules (2001), The Practice of Principle (Oxford: Oxford University
Press)
10. John Gardner and Leiter, Brian (1996), Legal Positivism in Dennis
11. Patterson (end), A Companion to Philosophy of Law and Legal Theory (Oxford:
Blackwell Publishers), pp. 241-60
12. Dworkin, Ronald (1967) The Model of Rules, University of Chicago Law
Review 35, pp.14-46
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13. Finnis, John (1980), Natural Law and Natural Rights (Oxford: Clarendon Press)
14. (1999) Law as Co-ordination, Ratio Juris 2, pp. 97-104
15. Fuller, Lon (1964), The Morality of Law (New Haven: Yale University Press)
16. Hart, H.L.A. (1961), The Concept of Law (Oxford: Clarendon Press)
17. Honor 1993, The Dependence of Morality upon Law, Oxford Journal of Legal
Studies 13, pp. 1-17
18. MacCormick 1984, Der Rechtsstaat und die Rule of Law, Juristenzeitung 39,
65-70
19. Postema 1996, Laws Autonomy and Public Practical Reason, in Robert George
(end), The Autonomy of Law (Oxford: Oxford University Press 1999)
20. (1986), The Morality of Freedom (Oxford: Clarendon Press)
21. (1994), Ethics in the Public Domain (Oxford: Clarendon Press)
22. (2004), Incorporation by Law, Legal Theory 10, pp. 1-17.
23. Wolff, Robert Paul (1970), In Defence of Anarchism (New York: Harper and
Row)

Cases referred while researching for the topic

1. Airedale NHS Trust v Bland [1993] HL

2. Attorney Generals Ref (No 6 of 1980) CA
3. Baker v Hopkins [1959] CA
4. Bolam v Friern Hospital [1957] QBD
5. Brown, R v (1993) HL
6. Central London Property v High Trees House [1956] KBD Denning J
7. Chadwick v British Railways Board [1967] QBD
8. Clark v MacLennan [1983]
9. Cox, R v (1992) Winchester Crown Court, Ognall J
10. Dudley & Stephens, R v (1884) CCR
11. F v West Berkshire Health Authority [1990] HL
12. Fairchild v Glenhaven [2002] HL

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Group V
13. Frenchay NHS Trust v S [1993] CA
14. Gillick v West Norfolk and Wisbech Area Health Authority [1986] HL
15. Knuller v DPP [1973] HL
16. Nettleship v Weston [1971] CA
17. Pretty v The United Kingdom (2002) ECHR
18. Roe v Ministry of Health [1954] CA
19. Shaw v DPP (1962) HL
20. Sidaway v Bethlem Royal Hospital [1985] HL
21. Stone & Dobinson, R v [1977] CA
22. Youssoupoff v MGM Pictures (1934) CA

The End

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