Interlacing between Morality and Legality in Public Domain

Aashutosh Tiwari 1 4005

Archit Sharma 1 4128
Jitendra Thoury 14290

Law and Morality can be seen as opposite faces of same coin. They
both tend to command/regulate human behaviour and also judge them
on the basis of their behaviour. Hence there should be some intimate
relationship between them both while also maintaining subtle
differences that separates them. The focus of this paper is to
understand their relationship as well as the differences and critique on
the system of judgement based the rules defined by either of them or
by combination of both.

1. Introduction

Law and morality both tend to define how an individual should behave
in situations arising in general life i.e. they both are used as regulators
of conduct in a society. Law does it by fear of punishments one may
face after violating a law and morality on the other hand does it by
involving incentives of sorts like guilt on doing wrong deed or feeling
virtue in doing good. Hence at first law and morality both may seem to
go hand in hand i.e. law should be enforcing the basic ethical rules a
person living a community should follow. What is morally right should
be legal and what is morally incorrect should be illegal (that is
basically what we would expect) but there is fundamental flaw in that
argument which is based on the vary nature of how these two things
are defined and the way they are supposed to work. Many times
situations arise where things which are legal may seem morally
incorrect to many and also the situations where certain acts which are
illegal but many people may not find any problem in those acts on
moral grounds. Even in liberal western democracies there are clear
differences of opinion about the morality of some laws. For example,
abortion laws in countries like in countries such as UK and USA,
significant numbers of people see legal abortion as always wrong and
immoral while others see illegal abortion at least in certain
circumstances as part of a womans fundamental right.
It could be argued that the rules and custom practiced in a society
comes from the culmination of personal experience of a vast majority
of the people residing in that society along with the experiences of
their predecessors.
These rules and regulation later get transformed into the laws once
appropriate people comes into the power. At times, it may also happen
that laws are made, just based on the whims of the ruler and they
might not coincide with the opinion of commons.
But as the society and its laws progresses, for a person born and
raised into these environment, these social norms and laws construct
the foundation of that persons mind-set and ideologies. But if due to
some reason their mind-set does not match with the person than that
person is more often than not labelled as immoral and unethical by the
society; even if the same ideology could have been considered moral
in a different society.
As different societies evolve differently over time, the definition of
morality and thus the subsequent legal system for these society are
vastly different . For example in some societies , honor killing is
considered acceptable to social norms while some other frown upon
them and another set consider them inhuman an unethical.
So what should be done with the person partaking these kind of
activities. On moral ground there is no definite answer to that question
as everyone thinks differently.But if there are laws in place, than it
could be called upon to decide the actions to be taken.
While morality is ambiguous and flexible , laws are direct and definite.
We are not claiming that laws are absolute, but we are arguing that
laws can give you an definite answer while morality may or may not
give you the definite answer all the time. As the latter is influenced by
personal feelings while the former is indifferent to them. We will try to
analyse and critique of the present system of judgement.
 2. Defining Morality and Legality

To start with, laws are set of rules set by men for men to ensure
proper functioning of world around us. As the world is changing the
laws need to be changed so dynamic in nature. Since laws are not
static, they are not relevant at all places and whole time scale, they
need to be revised with the development of society to remain relevant.
In the same manner, the scope of law also cannot be kept static. It
forces us that there cant be any definition of law or to say it is ever
changing with change in society. According to Professor Keeton, an
attempt to establish a satisfactory definition of law is to seek, to
confine jurisprudence within a straight jacket from which it is
continually trying to escape. According to famous political philosopher
Austin, law is the aggregate of the rules set by men as political
superior or sovereign to men as political subject. Laws are meant to
avoid conflicts and set guidelines so laws are commands that imposes
duties and duties are backed by a sanction. Law is the command of
sovereign so they have to be justified and enforced. For an example
we send someone jail for some act, taking his freedom and justify it by
saying that he broke the law so laws are powerful but are they right?
So it seems that laws are something that prevents us from doing
wrong or wrong is defined by laws. It involves a rational thought
process to decide what should be law and they are made by society so
they reflect social morals. Here is the slight indication of relation
between law and morality. What society thinks right(morally) is to be
celebrated so there should be law to celebrate it and if wrong(morally)
then it should not be done so we should define a law to prohibit that.
Here clearly morality is what the basis for law and change in the
morality is the basis for change in existing laws or legality.
Philosophers, as they always do, has taken different viewpoints on the
relation between morality and legality, one who says there is a close
relation between them and law is part of morality (Natural Law
theorists) and other major viewpoint is completely contrast to it, says
that relation between law and morality is not a necessary relation, it is
contingent relation, purpose of law need not coincide with purpose of
morality (Legal Positivists).
 3. Morality and Legality - Opposite Faces of Same Coin

Law and morality can be compared as regulators of our conduct. The

basis of this comparison will mainly consists of the efficiency of moral
and legal rules in controlling the behavior of individuals and the costs
associated with following and establishing these rules. Based on this
comparison we will be in position to argue that which is more suitable
as a norm to control the desirable conduct.
Law enjoys advantages over morality as establishing legal rules is
much simpler as compared to establishing moral rules. To establish
legal rules a legislative body just needs to articulate them and
communicate them to the masses properly but to establish moral rules
one needs efforts of years (eg. one needs to be educated from
childhood in school/society/media). Also in case of flexibility and
specificity of rules legal rules have an upper hand as moral rules are
usually not very specific (i.e they tend to be simple for eg. lying) and
are not very susceptible to change as they essentially defines the
person itself and changing them could mean for a person to lose his
identity. Also moral sanctions may not be as severe to control a person
to go against the rules and where legal sanctions can come handy. And
there may be some amoral individuals/groups who pay no heed to
moral laws hence legal laws are needed to govern them. However
apart from all these cases if we look at the costs involved in
maintaining legal laws and sanctions in comparison to moral sanctions
and the certainty of application of moral sanctions then we can clearly
say that morality is also not a weak contestant as a regulator of
conduct.

4. Prevalent viewpoints or ideas

There are many different schools of thought among legal philosophers

about the relationship between morality and law. However it's helpful
to start with understanding that many of these different ideas fall into
one of the two broad categories- Natural law or positivism. It is worth
summarizing these two approaches to help unravel the relationship
between law and morality.
Followers of natural law include people such as Plato, Aristotle,
Aquinas and Fuller. What Natural law thinkers agree on is that TRUE
Law is derived from moral principles. These principles in turn come
from one of the following three ways. One, religion or holy books such
as the Bible and the Koran; Second, people deriving ideas about
morality merely through logical reasoning of rational thought. One
example here is laws protecting principles of human rights. Three, is
about the idea that certain very important fundamental principle can
be observed in nature itself.
Now lets talk about positivism. People such as Bentham, Hart, Austin
and Kelsen, They concentrate on whether laws are legitimately made
in a particular state. Basically According to positivists, a law is a valid
law if a recognised human authority declares it to be law. The moral
content of the law is irrelevant , what matters in defining law is one
whether the law was made by the appropriate people and to whether
the agreed procedures for making the law were followed by those
people when they made that particular law , so evil laws are okay . But
really, positivist may well have other ways of deciding what is good
and what is bad law. For example, lots of positivists are heavily
influenced by the ideas of Jeremy Bentham who said that law should
seek to maximize pleasure and minimize pain for the greatest number
of people, so positivists and those who argue for natural law will often
agree on what the content of the law should be. Where they disagree
on is the validity of an immoral law.

5. An Absolute Legal System- A Paradox

If there is a fix set of laws which are absolute in nature, an absolute

legal system, creates a paradoxical situation in itself. We expect from
people to abide to laws and there is no place of moral based decision
making in any situation, this somehow cheapens our ability to make
rational decisions because everything is according to the laws
mentioned so there is no option for rational decision making. Change
in laws may involve rational thinking but this situation will not even
arise because we are not allowing people to go against the law (how
can we expect them to go against the law to amend the law?) If Indian
Police take Police act as the rigid code of conduct then it may be used
to spread violence (just opposite to the purpose) because act allows
them to fire a person below the belt in any situation of defence or
suspicion. Every person has his own identity so how can he be
represented by some specific set of laws correctly. There is always
possibility of cases which doesnt lies in the domain of the legal system
and cant be judged. It happens almost every week, that Supreme
Court faces completely new cases that can only be judged by
interpreting the constitution and laws and take a moral judgement
based on those. Incompleteness of the theory is evident.

6. A Complete Moral System- A leaky system

What you have to understand is that every person in this society have
multiple faces or masks that they use to fool others and many a times
themselves.The philosopher Nietzsche once stated that we are not
ashamed of our immoral thoughts, but rather of the fact that others
suspect us of having them. We need to hide certain aspects of
ourselves, even though we all know everyone has a dark side,
because they are taboo.
But this multi facedness leads to a problem for the society whenever
any person commits something immoral and unethical either by choice
or by accident. As one can only look into the past interactions of the
defaulter with others along with the actual or many time fabricated
details of incident but not into the actual psych of the person at the
time of the incident. Any judgement passed will always be doubtful as
we can never justify authenticity of the sentence as you will never be
able to correctly whether he actually wanted to commit the crime or
not.
Let's take an example, if there were to be murder case with two
suspects, one of whom was a well known criminal while the other one
was a very respected citizen. And both of them are claiming to be
innocent. Than there is a much higher chance that the respected
person would get free even if he was the actual criminal in this
incident just because he can claim that he did not do it and you can
look into his past actions if you want to. So a moral system for passing
judgement on crimes is not very effective as it leaves so many
loopholes for the criminals to escape and many a time can also result
in prosecuting the innocents.

7. Moral Extension of Legal system

As we have discussed in previous two sections, both an absolute legal

system and an absolute moral system have their pros and cons. While
legal system will always give you a consistent outcomes for same type
of crime , they may or may not be moral. While in the moral system
the outcome will vary on case to case basis, thus planting a seeds of
doubt, mistrust and inequality in the society. One has to understand
the provision of punishment for different crime is there to stop people
from commiting the crimes. The punishment need to be equal for the
same type of crime committed under similar circumstances , so that no
one will have an unfair advantage. But the problem of morals and
ethics arises due to the uncertainty in defining the circumstances of
crime. What preachers of moral based judgement argue that a mistake
due lapse of concentration and a deliberate mistake are vastly
different and should not be treated as the same. But this approach
questions the integrity of the judiciary itself. We believe that in order
to maintain this integrity the moral policing should not be involved in
the passing of the judgement. But if same type of circumstances keeps
on arriving than a provision should be amended in the law that will try
to resolve these situations. Further there should be a set time in the
past from which this amendment is needed to be taken into account.
As we believe that by the time this change happens some cases could
still be salvaged.

8. Conclusion and Consequences

It is important that we make our laws an expression of both social and

ecological responsibility as it should be our goal to have moral laws. In
the moral sense, as Augustine in his book On Free Choice of the Will
remind us that an unjust law is no law at all. Many of the social and
ecological practices that are legal, are to be considered immoral if they
contribute to an unjust and unsustainable future. So there is a need
for updation of the laws as time passes by. Also we know that there
may arise situations where morality alone may seem to be the best
norm to define behaviour of an individual, the situations where
morality and law if applied jointly seem to be advantageous and the
situations where law solely would seem to suffice. But to define in
which situation it is to best fit which model, becomes a NP-hard
problem(mathematicians :) ) i.e you can never actually judge which
situation demands which model .
Hence what we need is a legal system which should judge defaulters
on the basis of the predefined laws while not exactly injecting the
moral high ground in every individual case but should have an opening
for changing the laws at a wider scale based on the moral structure of
the society at a time. What is interesting to notice is that this is the
ideal form of governance that a democracy will have, as its laws are
defined by the representative of the people who are the keepers of the
social morals and ethics .
We are not claiming that this approach will result in an immediate shift
to an absolute legal and moral system. But it could very well be the
thing that can lead us to a state where the difference between actual
laws and Morality becomes very minute. If we are able to achieve that
then we will have a social structure which would not only be stable but
also morally correct to a very good extent. It is important that one
understand that no matter what happens and what kind of judicial
system we have, there could never be a completeness as it could be
achieved if and only if we can exactly look into the mindset of the
defaulters at the time of actual incident.
We should aim to achieve the state where laws are nearly always
moral but to maintain the stability of the pillar of the judiciary the
decisions should always be made on the basis of the laws that make
up the foundation of the judicial system.
9. References

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Philosophy (Fall 2009 Edition), Edward N. Zalta (ed.),
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Finnis, John, "Natural Law Theories", The Stanford Encyclopedia
of Philosophy (Winter 2016 Edition), Edward N. Zalta (ed.),
URL=<https://plato.stanford.edu/archives/win2016/entries/natur
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Green, Leslie, "Legal Obligation and Authority", The Stanford
Encyclopedia of Philosophy (Winter 2012 Edition), Edward N.
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Shavell, Steven. "Law versus morality as regulators of conduct."
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