GAP BETWEEN LAW AND MORALITY

A Project Made By

Name- Akanksha Ranjan

Roll No- 1508

Class- B.A. LLB

Submitted to – Dr. Manoranjan Kumar

FINAL PROJECT SUBMITTED IN PARTIAL FULLFILLMENT OF COURSE

JURISPRUDENCE I DURING THE ACADEMIC SESSION 2018-2019

5th, September, 2018

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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 ACKNOWLEDGEMENTS

I would specially like to thank my guide, mentor, Dr. Manoranjan Kumar without whose
constant support and guidance this project would have been a distant reality.

This work is an outcome of an unparalleled infrastructural support that I have received from
Chankaya National Law University, Patna.

I owe my deepest gratitude to the library staff of the college.

It would never have been possible to complete this study without an untiring support from my
family, specially my parents.

This study bears testimony to the active encouragement and guidance of a host of friends and
well-wishers.

Name-Akanksha Ranjan

Roll - 1508

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 INTRODUCTION

First published in 1961, legal philosopher H.L.A. Hart constructs a comprehensive argument for
his positivist concept of law in The Concept of Law. Hart affirms that his aim is not to
conceptualize and prescribe a definition of law, but to 'further the understanding of law,
coercion, and morality as different but related social phenomena." Accordingly, Hart underlines
three important areas of inquiry: 'How does law differ from and how is it related to orders backed
by threats? How does legal obligation differ from, and how is it related to, moral obligations?
What are rules and to what extent is law an affair of rules?' 1 Via this descriptive approach, Hart
advances his concept of law by refuting the idea of coercion in Austin's command theory while
also providing for the possibility of a positivist separation between what law is and what law
ought to be.

This second aspect of Hart's theory-the separation thesis has generated notable controversies
(particularly, the Fuller-Hart and Dworkin-Hart debates), and arguably remains his most
problematic2 conceptual premise.

Fuller/Dworkin side of the debate on morality and law by providing a further response to Hart's
concept of law. Although Hart provides a thorough justification for the reality and desirability of
this distinction, his argument is susceptible to additional counter-arguments relating to two
logical inconsistencies in his reasoning.

First, the concepts of law and morality are necessarily bound provided that Hart yields to his
theory of law as a system of rules rather than a system of orders backed by threats. By
recognizing the human capacity for moral reason, Hart provides for the moral character of the
internal viewpoint. The internal aspect of rules-which distinguishes a rule from a habit-indicates
that the ultimate rule of recognition emerges from this internal viewpoint as a first step from the
pre-legal into the legal world.3 Given that the validity of law is an internal statement itself
recognizing the rule of recognition, Hart links the validity of law to morality.

1
HLA Hart, The Concept ofLaw (2nd edn, OUP 1997) vi.
2
HLA Hart, 'Positivism and the Separation of Law and Morals' (1958) 71:4 Harvard Law Review 593.
3
Hart, Concept of Law (n 1) 56, 94

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Second, requirements under the primary rules of obligation conflict with Hart's concept of a law
too iniquitous to obey. These contradictory assertions necessarily provide for the moral nature of
law as a system of rules.

To begin, I will describe and assess Hart's concept of law in the following section. I will then
provide a more detailed analysis of the logical inconsistencies in Hart's theory in order to bridge
the conceptual gap between law and morality. It is crucial to note that this response does not
assume that morality includes 'all sorts of extra-legal notions about 'what ought to be,' regardless
of their sources, pretensions, or intrinsic worth.'4 Moral values are best understood as those
governing interpersonal relations in a way that prevents the instrumentalization of others, and
upholds for them a standard of treatment that one would wish for oneself. Furthermore, I
acknowledge that moral and legal rules are distinct, and that both the obligations they impose
and the sanctions they warrant differ.5

However, this distinction does not itself provide for the separation of law and morality; a
necessary connection does not imply that all moral rules are law, but merely requires that all
legal rules conform to moral values - i.e., that valid law cannot be immoral.

4
Lon L Fuller, 'Positivism and Fidelity to Law: A Reply to Professor Hart' (1958) 71:4 Harvard Law Review 630,
635.
5
Hart, Concept of Law (n 1) 86. Hart's assessment of law and morality generally focuses on the distinction between
moral and legal obligations in order to defend the separation thesis.

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 AIMS AND ABJECTIVE

1. To Understand the distinction and similarity between Law and Morality.

2. To Understand the Fullers and Harts concept of law and Morality

3. To understand the concept of law and its function with Morality and its behavior.

REVIEW OF LITERATURE

A comprehensive review of literature is an essential part of any scientific investigation. It

is necessary for the researcher to acquaint herself with the work done in the past which
induces insight into the problem for further work.

HYPOTHESIS

1. Morality still plays important role in interpretation of law as what law ought to be
2. Natural law philosophy regarding law and morality is more acceptable in extreme
scenarios
3. Positivist school is not able to define clearly the reasons of invalidity in bad laws.
4. Morality is also part of positivist approach when law is not clear.

Sources of Data

The researcher will rely upon secondary sources of data. The secondary sources include books.

ii Secondary Sources- Books, Articles and Journals.

STYLE OF WRITING

The researcher will be using both analytical and descriptive styles of writing.

MODE OF CITATION

The researcher will be using a uniform mode of citation throughout this paper.

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 METHOD OF DATA COLLECTION

The researcher will make use of doctrinal methods that includes within its ambit the library
work.

LIMITATION OF RESEARCH

The researcher has undergone time and monetary limitation.

SCOPE OF RESEARCH

This piece of study would be very helpful for the lawmakers as it would explicitly state about its
utility in the present context. If found of not much relevance there is an urgent need to either
amend or repeal it. Law exists to sub serve social needs and therefore it is desirable that it should
change with the changing needs of society and life otherwise its results would be contrary to the
general belief ‘Law Is Dynamic’.

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 TABLE OFCONTENT

SERIAL NO. NAME OF CHAPTER PAGE NO.

1. INTRODUCTION 3-4

2. REVIEW OF LITERATURE 5

3. RESEARCH METHODOLOGY 7

4. CHAPTERISATION: 8- 25
CHAPTER I: INTRODUCTION

CHAPTER-II: CONCEPT OF MORALITY

CHAPTER-III:CONCEPT OF LAW

CHAPTER-IV : GAP BETWEEN LAW AND

MORALITY

CHAPTER-V : A CRITICAL ANALYSIS

CHAPTER VI : CONCLUSION

BIBLIOGRAPHY 26

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 2. CONCEPT OF MORALITY

WHAT IS MORALITY?

Morality refers to as what is good or right. Morality speaks of a system of behavior in regards to
standards of right or wrong behavior. The word ‘morality’ includes the concepts of moral
standards, with regard to behavior, moral responsibility, referring to our conscience and a moral
identity, or one who is capable of right or wrong action. It designates the customary values and
standards embedded in a particular way of life. Morality can be defined as principles concerning
right and wrong or good and bad behavior. Morality describes certain principles that govern
people’s behavior. Without these principles in world, it would be impossible for the societies to
survive for long. An example of morality can be respecting elders. Morality in its strict sense can
be understood as the moral behavior of a human being which is exhibited by him while dealing
with the individuals of the society. Law and morality serve to channel out behavior. Some
conceive morality not as immutable principles of conduct or as discoverable by reason, but an
expression of human attitudes to conduct which may vary from society to society or from
individual to individual. Such theorists claim that for a legal system to exist, there must be
widely diffused, though not necessarily universal, recognition of a moral obligation to obey the
law, even though this may be overridden in particular cases, by a stronger moral obligation not to
obey particular morally iniquitous laws.6

MORALITY DEFINED

Morality speaks of a system of behavior in regards to standards of right or wrong behavior. The
word carries the concepts of:

(1)moral standards, with regard to behavior;

(2)moral responsibility, referring to our conscience; and

(3) a moral identity, or one who is capable of right or wrong action. Common synonyms include
ethics, principles, virtue, and goodness.

6
WHAT IS MORALITY?,(AUGUST16,2015,3:14P.M.),https://hessianwithteeth.wordpress.com/2014/12/19/what-
ismorality

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Morality has become a complicated issue in the multi-cultural world we live in today. Let's
explore what morality is, how it affects our behavior, our conscience, our society, and our
ultimate destiny.

MORALITY AND OUR BEHAVIOR

Morality describes the principles that govern our behavior. Without these principles in place,
societies cannot survive for long. In today's world, morality is frequently thought of as belonging
to a particular religious point of view, but by definition, we see that this is not the case. Everyone
adheres to a moral doctrine of some kind. Morality as it relates to our behavior is important on
three levels. Renowned thinker, scholar and author C.S .Lewis defines them as:

(1) to ensure fair play and harmony between individuals;

(2) to help make us good people in order to have a good society; and

(3) to keep us in a good relationship with the power that created us. Based on this definition, it's
clear that our beliefs are critical to our moral behavior.

On Point 1, Professor Lewis says most reasonable people agree. By Point 2, however, we begin
to see problems occurring. Consider the popular philosophy "I'm not hurting anyone but myself,"
frequently used to excuse bad personal choices. How can we be the good people we need to be if
we persist in making these choices, and how will that result not affect the rest of our society?
Bad personal choices do hurt others. Point 3 is where most disagreement surfaces. While the
majority of the world's population believes in God, or at least in a god, the question of Creation,
as a theory of origins, is definitely hotly debated in today's society.

A recent report in Psychology Today concluded: "The most significant predictor of a person's
moral behavior may be religious commitment. People who consider themselves very religious
were least likely to report deceiving their friends, having extramarital affairs, cheating on their
expenses accounts, or even parking illegally7." Based on this finding, what we believe about
Creation has a decided effect on our moral thinking and our behavior. Without belief in a
Creator, the only option that seems to be left is to adhere to moral standards we make up for
ourselves. Unless we live in a dictatorial society, we are free to choose our own personal moral
7
MORALITY,(AUGUST16,2015,3:33P.M.)http://virtuefirst.org/virtues/morality/

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code. But where does that freedom come from? The view of many who do not adhere to Creation
is that morality is a creation of humanity, designed to meet the need of stable societies. All kinds
of life are in a process of deciding between life and death, choosing what to do with power
and/or authority. This ultimately leads to a system of virtues and values. The question is: what
happens when our choices conflict with each other? What if something I believe I need in order
for my life to continue results in death for you? If we do not have an absolute standard of truth,
chaos and conflict will result as we are all left to our own devices and desires.

MORALITY AND OUR CONSCIENCE

Morality impacts our everyday decisions, and those choices are directed by our conscience.
Again, we must decide for ourselves where the conscience originates. Many people hold to the
idea that the conscience is a matter of our hearts, that concepts of right, wrong, and fairness are
"programmed" in each of us. This is in keeping with the writings of Paul the Apostle, who points
out that even those who do not believe in God frequently obey God's laws as given in the Ten
Commandments: "for when Gentiles, who do not have the law, by nature do the things in the
law, these, although not having the law, are a law to themselves, who show the work of the law
written in their hearts, their conscience also bearing witness, and between themselves their
thoughts accusing or else excusing them". Again, those who do not believe in God are left with
the only possible conclusion they can come to that our decisions are based solely on our need to
survive. What we call our conscience, then, would be based on learned behavior, rather than part
of a Divine design8.

8
MORALITY, MORALITY DEFINED, MORALITY AND OUR BEHAVIOR, MORALITY AND OUR CONSCIENCE,(AUGUST
16,2015,3:47P.M.),http://www.allaboutphilosophy.org/morality.htm

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 3. CONCEPT OF LAW

Hart criticizes the concept of law that is formulated by John Austin in The Province of
Jurisprudence Determined (1832) and that proposes that all laws are commands of a legally
unlimited sovereign. Austin claims that all laws are coercive orders that impose duties or
obligations on individuals. Hart says, however, that laws may differ from the commands of a
sovereign, because they may apply to those individuals who enact them and not merely to other
individuals. Laws may also differ from coercive orders in that they may not necessarily impose
duties or obligations but may instead confer powers or privileges.

Laws are rules that may forbid individuals to perform various kinds of actions or that may
impose various obligations on individuals. Laws may require individuals to undergo punishment
for injuring other individuals. They may also specify how contracts are to be arranged and how
official documents are to be created. They may also specify how legislatures are to be assembled
and how courts are to function. They may specify how new laws are to be enacted and how old
laws are to be changed. They may exert coercive power over individuals by imposing penalties
on those individuals who do not comply with various kinds of duties or obligations. However,
not all laws may be regarded as coercive orders, because some laws may confer powers or
privileges on individuals without imposing duties or obligations on them.

Laws that impose duties or obligations on individuals are described by Hart as "primary rules of
obligation." In order for a system of primary rules to function effectively, "secondary rules" may
also be necessary in order to provide an authoritative statement of all the primary rules.
Secondary rules may be necessary in order to allow legislators to make changes in the primary
rules if the primary rules are found to be defective or inadequate. Secondary rules may also be
necessary in order to enable courts to resolve disputes over the interpretation and application of
the primary rules. The secondary rules of a legal system may thus include 1) rules of recognition,
2) rules of change, and 3) rules of adjudication.

In order for the primary rules of a legal system to function effectively, the rules must be
sufficiently clear and intelligible to be understood by those individuals to whom they apply. If
the primary rules are not sufficiently clear or intelligible, then there may be uncertainty about the
obligations which have been imposed on individuals. Vagueness or ambiguity in the secondary

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rules of a legal system may also cause uncertainty as to whether powers have been conferred on
individuals in accordance with statutory requirements or may cause uncertainty as to whether
legislators have the authority to change laws. Vagueness or ambiguity in the secondary rules of a
legal system may also cause uncertainty as to whether courts have jurisdiction over disputes
concerning the interpretation and application of laws.

Primary rules of obligation are not in themselves sufficient to establish a system of laws that can
be formally recognized, changed, or adjudicated, says Hart. Primary rules must be combined
with secondary rules in order to advance from the pre-legal to the legal stage of determination. A
legal system may thus be established by a union of primary and secondary rules (although Hart
does not claim that this union is the only valid criterion of a legal system or that a legal system
must be described in these terms in order to be properly defined).

Hart distinguishes between the "external" and "internal" points of view with respect to how the
rules of a legal system may be described or evaluated. The external point of view is that of an
observer who does not necessarily have to accept the rules of the legal system. The external
observer may be able to evaluate the extent to which the rules of the legal system produce a
regular pattern of conduct on the part of individuals to whom the rules apply. The internal point
of view, on the other hand, is that of individuals who are governed by the rules of the legal
system and who accept these rules as standards of conduct9.

The "external" aspect of rules may be evident in the regular pattern of conduct which may occur
among a group of individuals. The "internal" aspect of rules distinguishes rules from habits, in
that habits may be viewed as regular patterns of conduct but are not usually viewed as standards
of conduct. The external aspect of rules may in some cases enable us to predict the conduct of
individuals, but we may have to consider the 'internal' aspect of rules in order to interpret or
explain the conduct of individuals.

There are two minimum requirements which must be satisfied in order for a legal system to exist:
1) private citizens must generally obey the primary rules of obligation, and 2) public officials
must accept the secondary rules of recognition, change, and adjudication as standards of official

9
Positivism and the Separation of Law and Morals, H.L.A Hart , Harvard Law Review, Vol. 71, No. 4 (Feb., 1958), pp.
593-629., pg 620

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conduct.2 If both of these requirements are not satisfied, then primary rules may only be
sufficient to establish a pre-legal form of government.

FUNCTION AND PURPOSE OF LAW

Law is an instrument of society and its objects are achievement of justice, stability and peaceful
change.

1.JUSTICE AND LAW The ultimate purpose of law is justice. Salmond says that law is “the
body of principles recognized and applied by the State in administration of justice”. According to
Salmond, justice consists in giving to every man his own. The rule of justice determines the
sphere of individual liberty in the pursuit of individual welfare, so as to confine that liberty
within the limits which are consistent with the general welfare of mankind, within the sphere of
liberty so delimited for every man by the rule of justice, he is left free to seek his own interest in
accordance with the ruleofwisdom.

2.STABILITY Law must aim at stabilityin society. To achieve stabilitya balance has to be
struck not between persons, but between interests. The law has to maximize the fulfillment of the
interests of the community and its members and to promote the smooth running on the
machinery of society. Indeed, the motion of law represents the need of uniformity and certainty
to achieve stability. The stability and security for maintaining the social order is derived from
uniform unchanging andcertainrulesoflaw.

3.PEACEFULCHANGE The existing rules may not provide solution to the cases of changed
times and no rule can provide for every possible case. There is need for flexibility. Flexibility is
necessary to enable the law to adapt itself to social change. As society alters, new social, political
and economic requirements creep in and the needs of the people change from time to time.

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 4. GAP BETWEEN LAW AND MORALITY

Hart first considers the positivist doctrine of Bentham and Austin regarding the separation of law
and morals. He then considers three possible critiques of this doctrine and refutes each of them
as misunderstanding the central point of the doctrine

. Part I: distinguishing law as it is from law as it ought to be This first section of the essay
clarifies more precisely the nature of the separation thesis in Bentham and Austin.

1. The Utilitarians, like Bentham & Austin, constantly insisted on the need to distinguish, firmly
& with the maximum of clarity, law as it is from law as it ought to be; their reason for this
insistence was to enable men to see steadily the precise issues posed by the existence of morally
bad laws, & to understand the specific character of the authority of a legal system.

2. Both Bentham & Austin asserted two things:

 In the absence of an expressed constitutional or legal provision, it could not follow from
the mere fact that a rule violated standards of morality that it was not a rule of law
 It could not follow from the mere fact that a rule was morally desirable that it was a rule
of law

Part II: other doctrines of legal positivism This second section of the essay points out that there
were other provisions of legal positivism in Bentham and Austin in addition to the separation
thesis. In fact, Hart points to two other doctrines and then argues that the three doctrines are
separate. Hart is interested in showing that a rejection of one part of legal positivism doesn’t
necessarily entail a rejection of the entirety of legal positivism. So the first criticism he considers
is a critique of the command theory of Austin’s. So we can distinguish the doctrine of the
separation of law and morals from the command theory and reject the command theory while
maintaining the separation of law and morality.

Part III: Positivism and (the vices of and errors of) Formalism Hart now turns to a second
critique of the separation thesis, one that comes from the American legal realists. Here, Hart
reviews the problem of the core and the penumbra of concepts in laws (i.e., “vehicle”) and
considers the charge that in settling disputes regarding penumbral cases, judges consult moral
theories, that is, some concept of what the law ought to be. The charge that Hart is considering:

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the wrongness of deciding cases in an automatic and mechanical way and the rightness of
deciding cases by reference to social purposes show that the insistence on the separation thesis is
wrong.

 Problems of the Penumbra: the problems which arise outside the hard core of standard
instances or settled meaning.
 Why is the problem of the penumbra a problem for positivism? It seems to suggest that
inorder to make sound decisions in such cases some concept of what the law ought to be
must be consulted. So the problem of the penumbra creates for us a situation where we
seem to witness the intersection of law and morals.
 What the critique of positivism says: Instead of saying that the recurrence of penumbral
questions shows us that legal rules are essentially incomplete, and that, when they fail to
determine decisions, judges must legislate & so exercise a creative choice between
alternatives, we shall say that the social policies which guide the judges´ choice are in a
sense there for them to discover; the judges are only "drawing out" of the rule what, if it
is properly understood, is "latent within it.”
 "Ought": the word "ought" merely reflects the presence of some standard of criticism;
one of these standards is a moral standard but not all standards are moral. Intelligent
decisions which we oppose to mechanical or formal decisions are not necessarily
identical with decisions defensible on moral grounds. So Hart is arguing that merely
because a judge thinks that the word “vehicle” ought to include x, y, or z, this doesn’t
necessarily mean he is referring to moral principles. SO: the main point here is that it is
true that the intelligent decision of penumbral questions is one made not mechanically but
in the light of aims, purposes, and policies, though not necessarily in the light of anything
we would call moral principles10.

Part IV: Positivism, Nazi Germany, and the existence of morally evil laws In this section Hart
considers a third critique of the separation doctrine growing out of the experience with the Nazi
regime: positivism had somehow contributed to the Nazi tyranny.

10
HLA Hart, 'Positivism and the Separation of Law and Morals' (1958) 71:4 Harvard Law Review 593

15
  Radbruch: before his conversion, Radbruch held that resistance to law was a matter for
the personal conscience, to be thought out by the individual as a moral problem, & the
validity of a law could not be disproved by showing that its requirements were morally
evil or even by showing that the effect of compliance with the law would be more evil
than the effect of disobedience. The Natural Law Position: His considered reflections led
him to the doctrine that the fundamental principles of humanitarian morality were part of
the very concept of Legality & that no positive enactment or statute, however clearly it
was expressed & however clearly it conformed with the formal criteria of validity of a
given legal system, could be valid it contravened basic principles of morality.
 Austin & Bentham: said that if laws reached a certain degree of iniquity then there would
be a plain moral obligation to resist them & to withhold obedience
 Most everything that Radbruch says is really dependent upon an enormous overvaluation
of the importance of the bare fact that a rule may be said to be a valid rule of law, as if
this, once declared, was conclusive of the final moral question: "Ought this rule of law to
be obeyed?" The Utilitarians can claim that laws may be laws but too evil to be obeyed.
This approach is more immediate, obvious, and understandable. Plain speech is
preferable to disputable philosophy.
 Hart cites the case of a woman who turns in her husband and argues that it is not the most
straightforward way to treat this case by declaring a statute established since 1934 not to
have the force of law. He seems to prefer the introduction of a retrospective law to the
introduction of “the sound conscience and sense of justice of all decent human beings.”

Part V: The Separation Thesis and Legal Systems Hart addresses the issue of whether the
separation thesis can be applied to legal systems. This seems relevant to Fuller’s account of the
internal morality of the law. Here Hart seems to make some concessions to the natural law
theorist and defend something that he calls a minimum content theory of natural law. Hart
identifies two ways in which the legal system overlaps with moral values but he argues that we
shouldn’t read too much into this. A legal system can satisfy his minimal requirements and still

16
apply laws which were hideously oppressive (i.e., slavery: “might deny to a vast rightless slave
population the minimum benefits of protection from violence and theft).11

Part VI: Positivism and Non cognitivism Hart considers the confusion between positivism and
the moral theory that statements of what is the case (statements of fact) belong to a category or
type radically different from statements of what ought to be (value statements). Does disproof of
noncognitivism lead to disproof of the separation thesis? Hart argues not12.

Austin's protest against blurring the distinction between what law is and what it ought to be is
quite general: it is a mistake, whatever our standard of what ought to be, whatever "the text by
which we regulate our approbation or disapprobation." His examples, however, are always a
confusion between law as it is and law as morality would require it to be. For him, it must be
remembered, the fundamental principles of morality were God's commands, to which utility was
an "index": besides this there was the actual accepted morality of a social group or "positive"
morality. Bentham insisted on this distinction without characterizing morality by reference to
God but only, of course, by reference to the principles of utility. Both thinkers' prime reason for
this insistence was to enable men to see steadily the precise issues posed by the existence of
morally bad laws, and to understand the specific character of the authority of a legal order.
Bentham's general recipe for life under the government of laws was simple: it was "to obey
punctually; to censure freely."13 But Bentham was especially aware, as an anxious spectator of
the French revolution, that this was not enough: the time might come in any society when the
law's commands were so evil that the question of resistance had to be faced, and it was then
essential that the issues at stake at this point should neither be oversimplified nor obscured.14
Yet, this was precisely what the confusion between law and morals had done and Bentham found
that the confusion had spread symmetrically in two different directions.

On the one hand Bentham had in mind the anarchist who argues thus: "This ought not to be the
law, therefore it is not and I am free not merely to censure but to disregard it." On the other hand
he thought of the reactionary who argues: "This is the law, therefore it is what it ought to be,"

11
Positivism and the Separation of Law and Morals, H.L.A Hart , Harvard Law Review, Vol. 71, No. 4 (Feb., 1958),
pp. 593-629., pg 543
12
ibid.
13
BENTHAM, A Fragment on Government, in I WORKS 22I, 230 (Bowring ed. I859) (preface, i6th para.).
14
BENTHAM, Principles of Legislation, in THE THEORY OF LEGISLATION I, 65 n.* (Ogden ed. I931)

17
and thus stifles criticism at its birth15. Both errors, Bentham thought, were to be found in
Blackstone: there was his incautious statement that human laws were invalid if contrary to the
law of God,16 and "that spirit of obsequious quietism that seems constitutional in our Author"
which "will scarce ever let him recognize a difference" between what is and what ought to be.'17

L. Fuller says that, the question may be raised, therefore, as to the nature of these fundamental
rules that furnish the framework within which the making of law takes place. On the one hand,
they seem to be rules, not of law, but of morality. They derive their efficacy from a general
acceptance, which in turn rests ultimately on a perception that they are right and necessary. They
can hardly be said to be law in the sense of an authoritative pronouncement, since their function
is to state when a pronouncement is authoritative.

On the other hand, in the daily functioning of the legal system they are often treated and applied
much as ordinary rules of law are. Here, then, we must confess there is something that can be
called a "merger" of law and morality, and to which the term "intersection" is scarcely
appropriate. Instead of pursuing some such course of thought, to my surprise I found Professor
Hart leaving completely untouched the nature of the fundamental rules that make law itself
possible, and turning his attention instead to what he considers a confusion of thought on the part
of the critics of positivism. Leaving out of account his discussion of analytical jurisprudence, his
argument runs something as follows: Two views are associated with the names of Bentham and
Austin. One is the command theory of law, the other is an insistence on the separation of law and
morality. Critics of these writers came in time to perceive - "dimly" Professor Hart says - that the
command theory is untenable. By a loose association of ideas they wrongly supposed that in
advancing reasons for rejecting the command theory they had also refuted the view that law and
morality must be sharply separated.

Law, considered merely as order, contains, then, its own implicit morality. This morality of order
must be respected if we are to create anything that can be called law, even bad law. Law by itself
is powerless to bring this morality into existence. Until our monarch is really ready to face the
responsibilities of his position, it will do no good for him to issue still another futile command,

15
HLA Hart, 'Positivism and the Separation of Law and Morals' (1958) 71:4 Harvard Law Review 593
16
Bentham, a comment on the commentaries 49 (i928) (c. iii).
17
Bentham, a fragment on government, in i works 221, 294 (bowring ed. i859) (c. v, ioth para.).

18
this time self-addressed and threatening himself with punishment if he does not mend his ways18.
There is a twofold sense in which it is true that law cannot be built on law. First of all, the
authority to make law must be supported by moral attitudes that accord to it the competency it
claims. Here we are dealing with a morality external to law, which makes law possible. But this
alone is not enough. We may stipulate that in our monarchy the accepted "basic norm"
designates the monarch himself as the only possible source of law. We still cannot have law until
our monarch is ready to accept the internal morality of law itself. In the life of a nation these
external and internal moralities of law reciprocally influence one another; a deterioration of the
one will almost inevitably produce a deterioration in the other. So closely related are they that
when the anthropologist Lowie speaks of "the generally accepted ethical postulates underlying
our legal institutions as their ultimate sanction and guaranteeing their smooth functioning," 19 he
may be presumed to have both of them in mind. What I have called "the internal morality of law"
seems to be almost completely neglected by Professor Hart. He does make brief mention of
"justice in the administration of the law," which consists in the like treatment of like cases, by
whatever elevated or perverted standards the word "like" may be defined." But he quickly
dismisses this aspect of law as having no special relevance to his main enterprise. It is his neglect
to analyze the demands of a morality of order that leads him through- out his essay to treat law as
a datum projecting itself into human experience and not as an object of human striving.

18
Positivism and Fidelity to Law: A Reply to Professor Hart, Lon. L. Fuller, Harvard Law Review, Vol. 71, No. 4 (Feb.,
1958), pp. 630-672, pg 670
19
LowIE, THE ORIGIN OF THE STATE 113 (1927)

19
 5. A Critical Analysis

Professor Hart's essay, his argument seemed to me to suffer from a deep inner contradiction. On
the one hand, he rejects emphatically any confusion of "what is" with "what ought to be." He will
tolerate no "merger" of law and conceptions of what law ought to be, but at the most an
antiseptic "intersection." Intelligible communication on any subject, he seems to imply, becomes
impossible if we leave it uncertain whether we are talking about "what is" or "what ought to be."

Yet it was precisely this uncertainty about Professor Hart's own argument which made it
difficult for me at first to follow the thread of his thought. At times he seemed to be saying that
the distinction between law and morality is something that exists, and will continue to exist,
how- ever we may talk about it. It expresses a reality which, whether we like it or not, we must
accept if we are to avoid talking non- sense. At other times, he seemed to be warning us that the
reality of the distinction is itself in danger and that if we do not mend our ways of thinking and
talking we may lose a "precious moral ideal," that of fidelity to law. It is not clear, in other
words, whether in Professor Hart's own thinking the distinction between law and morality simply
"is," or is something that "ought to be" and that we should join with him in helping to create and
maintain.20

I. THE DEFINITION OF LAW

Throughout the essay Professor Hart aligns himself with a general position which he associates
with the names of Bentham, Austin, Gray, and Holmes. He recognizes, of course, that the
conceptions of these men as to "what law is" vary considerably, but this diversity he apparently
considers irrelevant in his defense of their general school of thought. If the only issue were that
of stipulating a meaning for the word "law" that would be conducive to intellectual clarity, there
might be much justification for treating all of these men as working in the same direction.
Austin, for example, defines law as the command of the highest legislative power, called the
sovereign.

For Gray, on the other hand, law consists in the rules laid down by judges. A statute is, for Gray,
not a law, but only a source of law, which becomes law only after it has been interpreted and

20
Carter Professor of General Jurisprudence, Harvard Law School. A.B., Stanford, I924, J.D., I926.

20
applied by a court. Now if our only object were to obtain that clarity which comes from making
our definitions explicit and then adhering strictly to those definitions, one could argue plausibly
that either conception of the meaning of "law" will do. Both conceptions appear to avoid a
confusion of morals and law, and both writers let the reader know what meaning they propose to
attribute to the word "law."

The matter assumes a very different aspect, however, if our interest lies in the ideal of fidelity to
law, for then it may become a matter of capital importance what position is assigned to the
judiciary in the general frame of government. Confirmation for this observation may be found in
the slight rumbling of constitutional crisis to be heard in this country today. It is unlikely that this
remedy for our govern-mental ills derives from any deep study of Austin or Gray, but surely
those who propose it could hardly be expected to view with indifference the divergent definitions
of law offered by those two jurists. If it be said that it is a perversion of Gray's meaning to extract
from his writings any moral for present controversies about the role of the Supreme Court, then it
seems to me there is equal reason for treating what he wrote as irrelevant to the issue of fidelity
to law generally21.

Another difference of opinion among the writers defended by Professor Hart concerns Bentham
and Austin and their views on constitutional limitations on the power of the sovereign. Bentham
considered that a constitution might preclude the highest legislative power from issuing certain
kinds of laws.

For Austin, on the other hand, any legal limit on the highest lawmaking power was an absurdity
and an impossibility. What guide to conscience would be offered by these two writers in a crisis
that might some day arise out of the provision of our constitution to the effect that the amending
power can never be used to deprive any state without its consent of its equal representation in the
Senate22.

Surely it is not only in the affairs of everyday life that we need clarity about the obligation of
fidelity to law, but most particularly and urgently in times of trouble. If all the positivist school
has to offer in such times is the observation that, however you may choose to define law, it is

21
Positivism and Fidelity to Law: A Reply to Professor Hart, Lon. L. Fuller, Harvard Law Review, Vol. 71, No. 4 (Feb.,
1958), pp. 630-672, pg 670
22
U.S. Constitution. v

21
always something different from morals, its teachings are not of much use to us. he suggest, then,
that Professor Hart's thesis as it now stands is essentially incomplete and that before he can attain
the goals he seeks he will have to concern himself more closely with a definition of law that will
make meaningful the obligation of fidelity to law.

DEFINITION OF MORALITY

It is characteristic of those sharing the point of view of Professor Hart that their primary concern
is to preserve the integrity of the concept of law. Accordingly, they have generally sought a
precise definition of law, but have not been at pains to state just what it is they mean to exclude
by their definitions. They are like men building a wall for the defense of a village, who must
know what it is they wish to protect, but who need not, and indeed cannot, know what invading
forces those walls may have to turn back23.

When Austin and Gray distinguish law from morality, the word "morality" stands
indiscriminately for almost every conceivable standard by which human conduct may be judged
that is not itself law. The inner voice of conscience, notions of right and wrong based on
religious belief, common conceptions of decency and fair play, culturally conditioned prejudices
- all of these are grouped together under the heading of "morality" and are excluded from the
domain of law. For the most part Professor Hart follows in the tradition of his predecessors.
When he speaks of morality he seems generally to have in mind all sorts of extra- legal notions
about "what ought to be," regardless of their sources, pretensions, or intrinsic worth. This is
particularly apparent in his treatment of the problem of interpretation, where uncodified notions
of what ought to be are viewed as affecting only the penumbra of law, leaving its hard core
untouched.

Toward the end of the essay, however, Professor Hart's argument takes a turn that seems to
depart from the prevailing tenor of his thought. This consists in reminding us that there is such a
thing as an immoral morality and that there are many standards of "what ought to be" that can
hardly be called moral.4 Let us grant, he says, that the judge may properly and inevitably
legislate in the penumbra of a legal enactment, and that this legislation (in default of any other

23
Hart, supra note 3, at 624.

22
standard) must be guided by the judge's notions of what ought to be24. Still, this would be true
even in a society devoted to the most evil ends, where the judge would supply the insufficiencies
of the statute with the iniquity that seemed to him most apt for the occasion.

Let us also grant, says Professor Hart toward the end of his essay, that there is at times even
something that looks like discovery in the judicial process, when a judge by restating a principle
seems to bring more clearly to light what was really sought from the beginning. Again, he
reminds us, this could happen in a society devoted to the highest refinements of sin, where the
implicit demands of an evil rule might be a matter for discovery when the rule was applied to a
situation not consciously considered when it was formulated25.

24
H.L.A.Hart’sTheConceptofLaw,http://www.angelfire.com/md2/timewarp/hart.html.
25
Positivism and Fidelity to Law: A Reply to Professor Hart, Lon. L. Fuller, Harvard Law Review, Vol. 71, No. 4
(Feb., 1958), pp. 630-672, pg 633

23
 6. CONCLUSION

It can be concluded in the end that law are made keeping in context of morality or ethics.
Examples that the reservation was passed keeping in mind the religious and social sentiments of
the people otherwise it would be tedious task while keeping in mind the one factor and
neglecting the others. Law and morality are intimately related to each other. Laws are generally
based on the moral principles of society. Both regulate the conduct of the individual in society.
They influence each other to a great extent. Laws, to be effective, must represent the moral ideas
of the people. But good laws sometimes serve to rouse the moral conscience of the people and
create and maintain such conditions as may encourage the growth of morality. Laws regarding
prohibition and spread of primary education are examples of this nature. Morality cannot, as a
matter of fact, be divorced from politics.

The ultimate end of a state is the promotion of general welfare and moral perfection of man. It is
the duty of the state to formulate such laws as will elevate the moral standard of the people. The
laws of a state thus conform to the prevailing standard of morality. Earlier writers on Political
Science never made any distinction between law and morality. In ancient India, the term Dharma
connoted both law and morality. Law, it is pointed out, is not merely the command of the
sovereign, it represents the idea of right or wrong based on the prevalent morality of the people.
Moreover, obedience to law depends upon the active support of the moral sentiments of the
people. Laws which are not supported by the moral conscience of the people are liable to become
dead letters. For example laws regarding Prohibition in India have not succeeded on account of
the fact that fullmoralconscienceofthepeoplehasnotbeenarousedinfavorofsuchlaws. Although law
and morality and ethics are interconnected yet they differ from each other.

Morals define personal character, while ethics stress a social system in which those morals are
applied. In other words, ethics point to standards or codes of behavior expected by the group to
which the individual belongs. In society, we are all faced with the butting heads of ethics and
morals. Abortion is legal and therefore medically ethical, while many people find it personally
immoral. Fundamentalists, extremists, and even mainstream theists all have different ideas about
morality that impact each of our lives, even if indirectly through social pressures or legal
discrimination.

24
In the case of homosexuality, many believe it is morally wrong, yet some of the same people also
believe it is unethical to discriminate legally against a group of people by disallowing them the
same rights afforded heterosexuals. This is a plain example of ethics and morals at battle. Ethics
and morals are central issues as the world strives to overcome current challenges and
international crossroads26. Hopefully, in the coming years, a growing understanding will lead to
peaceful and productive solutions.

26
Dr.Ahmad Masum, Definition of Law Jurisprudence, http://www.slideshare.net/tipahnurhafizah/definition-of-law
ofjurisprudence

25
 BIBLIOGRAPHY

BOOKS :

 Hart, HLA (1961) Concept of Law ,Oxford: Clarendon Press.

 Mahajan,V.D., (5th edition 2015) Jurisprudence and Legal Theory.
 Lon L. Fuller (1964 )The Morality of Law , Yale University Press.

JOURNALS

 Positivism and Fidelity to Law: A Reply to Professor Hart, Lon. L. Fuller, Harvard Law
Review, Vol. 71, No. 4 (Feb., 1958), pp. 630-672, pg 633.

 HLA Hart, 'Positivism and the Separation of Law and Morals' (1958) 71:4 Harvard Law
Review 593.

 Bentham, A Fragment on Government, in I WORKS 22I, 230 (Bowring ed. I859)

(preface, 16th para.).

 Carter Professor of General Jurisprudence, Harvard Law School. A.B., Stanford, I924,
J.D., I926.

WEBSITES :

 H.L.A.Hart’sTheConceptofLaw,http://www.angelfire.com/md2/timewarp/hart.html.

 Dr.AhmadMasum,DefinitionofLawJurisprudence,http://www.slideshare.net/tipahnurhafiz
ah/definition-of-law1jurisprudence.

 Morality,MoralityDefined,MoralityandOurBehavior,MoralityandOurConscience,http://w
ww.allaboutphilosophy.org/morality.htm

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