Law and Morality: The Never-Ending Debate

Share this

Introduction:

When it comes to defining Law and Morality, they can be defined in the number of ways. In simpler terms, Law is a set of rules and regulations which are protected and enforced by the State and backed by sanction and therefore if anyone disobeys the law, he/she will get punishment for that. On the other hand, Morality is a concept which categorizes human behavior as good or bad. If we do something good, morality says you will get praise and experience the virtue for it; but if you did something wrong or bad then the virtue will go other way around and we may suffer guilt and disappointment.

Hart’s view on Law and Morality:

Prof. HLA hart was a legal positivist and critical moral philosopher. As a legal positivist, he states it is not necessary that law has a definite connection with morality. According to Hart, an immoral act can be termed as legal and a moral act be an illegal act somewhere. He does not believe that the concepts of law and morality are interdependent. He argued against the concept that the law needs to have prerequisites based on morality. According to him, a law happens to exist irrespective of any likes, dislikes, goods, and bads. Although he does not disbelieve the fact that the law has been largely influenced by the concept of morality. But he believes that the law need not have all time conformity with morality. Both the concepts, according to him, have an intersecting point, but they both are altogether different and we need to understand that there is a difference between what law is what law ought to be.

In his book Concept of Law, Hart has analyzed the relation between the law, coercion, and morality and came up with the conclusion that two are separate concepts. In this book, he explains that all lawyers cannot be classified into moral commands or coercive commands. By classifying all laws into moral commands, Hart says it will lead to the mischaracterization of the function and purpose of the laws in different areas and fields. According to him, the continuance of the pre-existing laws cannot be justified on the basis of command, these laws can be abolished to end up the long-standing myth. According to Hart, a legal system or a law can be classified into two parts: ‘Primary Rules’ and ‘Secondary Rules’. ‘Primary Rules’ are binding in nature and Hart explains it as “rules that impose duties or obligations on individuals, such as the rules of the criminal law or the law of tort. They are binding because of practices of acceptance which people are required to do or to abstain from certain actions.” On the other hand, Hart defines secondary rules as “those rules which confer power, public or private, such as the law that facilitate the making of contracts, wills, trusts, marriages, etc or which lay down rules governing the composition of powers of courts, legislatures and other officials bodies.”

According to Hart, four features of morality are necessary for a clear picture of his concept of law. They are— “(i) importance, (ii) immunity from deliberate change, (iii) voluntary character of moral offense and (iv)forms of moral pressure. An indispensable feature of a moral rule is that it is regarded as something of great importance. Hence, individuals cannot omit it. It is an attribute of a legal system that new legal rules can be introduced and the old ones can be changed or replaced by deliberate enactment. On the contrary, moral rules cannot be brought into being or eliminated in this manner. Moral responsibility is a matter of internal behavior while the law is generally concerned with external behavior.”

Criticisms of Hart’s view:

Hart while talking about the law and morality said that they both are not interconnected but while he was talking about his rules of recognition, he himself said that these rules have a minimum requirement of morality. This goes against his idea of law and morality being not connected.

Secondly, law and morality are two such concepts which cannot be separated from each other. Law and morals have a lot of elements which are common to both.

Even talking practically, it is hard to separate law from morality. As the law changes from time to time, morality also tends to change from time to time as society progresses. For example, the concept of dowry is taken as an immoral act, therefore legislations are made to stop dowry. Hence, both concepts are interconnected.

Fuller’s view on Law and Morality:

Prof Hart, on the other hand, believes that there is a necessary connection between the legal rules and morality. According to him, all legal norms are based on basic moral norms. He believes that for every law to be a valid law, it has to pass through the morality test. A moral functional test is a necessary step for every legal function. Both the concepts i.e. law and morality has a deep and strong connection to each other, therefore, both the concepts are inter-related.

Fuller categorized morality into two areas: ‘Morality of aspiration’ and ‘morality of duty’. The first component is basically concerned with one’s personal level of morality for the promotion of his best interests. The second set is more concerned with society and morality for societal best interests.

Fuller rejects the positivist approach of law and morality. Fuller has prescribed eight standards through which law must go. They are:

  1. “The principle must be expounded in a manner so that it can be generally applied.”
  2. “Law must always be promulgated, i.e they must be communicated to the people to whom they are directed.”
  3. “Newly formed principles of law should always be applied in a prospective manner. Retrospective application of law should only be permitted on rare occasions depending upon exogenous circumstances.”
  4. “There should be clarity in the law.”
  5. “Law should be free from contradictory mandates.”
  6. “Laws should not impose on individuals impossible standards of action.”
  7. “Abiding by previously announced norms, i.e stare decisis is desirable according to Fuller, as the individuals are scared of the changes that they are otherwise subjected to in case frequent alteration of laws.”
  8. “According to Fuller, for a law to attain its objectives, it must satisfy the requirements of what he terms as congruence, which is the conformity with the prescribed norms and the actions of individuals.”

Criticisms of Fuller’s view:

Not every time a law has to pass through a basic moral standard. There could be some laws which may not pass through that moral standards test, but still, those are valid laws. Fuller is right in saying that law has a necessary connection with the morality but this is not applicable to every law.

As society progresses, moral standards also change. So, the law also has to be changed accordingly. Fuller talks about basic moral standards which are uncertain at a given point of time. Something can be moral for one person at a time and immoral for other people at the same time. So whose moral standards will be considered is the question which Fuller failed to answer. For example, same-sex marriages may be moral for one and immoral for others. Whether to make a law against it or for it is in the hands of the sovereign. Morality has no role to play in such laws.

Conclusion:

Hart and Fuller: the two of the greatest legal philosophers and both of which belong to different schools of thought and debated over the concepts of law and morality and defended their school of thought. One believes that law and morality are separate and the other believes the other way around. However, both them believed that the legal system is aimed at achieving justice, which cannot be achieved by parting ways with morality. Morality was an important element for making laws and it is now as well. The main reason why most of the people conform to the laws is that we find a moral obligation attached to follow those laws. A system which lacks morality and justice will have to depend upon repression.  And, when a repressive regime falls, its system falls with it.

Endnotes:

  1. HLA Hart, „Positivism and the separation of law and morals‟,[1958] Vol 71, no. 4, Harvard Law Review at p. 593-629
  2. Benjamin C Zipursky, „Practical Positivism versus Practical Perfectionism: The Hart-Fuller Debate at fifty‟, [2008] Vol 83, New York University Law Review at p.1170- 1212
  3. Stephanie Patron, ‟The Inner morality of law- An analysis of Lon L Fuller‟s Theory‟, [2014], Glasgow University Law Society Law Review.
  4. Bayles D Michael (1992) Hart’s Legal Philosophy- An Examination, London, Dordrecht, Boston: Kluwer Academic Publishers.
  5. Bodenheimer, Edgar (1974) Jurisprudence – The Philosophy and the Method of Law, New Delhi: Universal Law Publishing Co Pvt Ltd.

Leave a comment

Show Buttons
Hide Buttons