Law and morality
Law and morality are both too uncertain terms. many jurists, a philosopher from ancient Greek time to modern time tried to define these to terms. These two terms have a vast sphere. the reason for not finding any definite meaning of these terms can be that both these terms are dynamic in nature, with the time, situation and place meaning and value of these terms keep changing.
What is the law? In its literal meaning law is the command of a sovereign authority, which talks about what kind of behaviour is expected of citizens, what to do what not to. Law helps a state to establish proper order in society and also as a tool to protect the rights of citizens. We can say the law is a set of rules and regulations to regulate human behaviour in a civilized society. Law is an instrument for the discharge of justice. In ancient times law was taken divine originated set of rules to regulate human action.
Modern jurists gave a various definition of law-
According to Salmond law “as the body of principles recognized and applied by the state for the administration of justice”.
Kelson defined law as “law is characterised no as an end but as a specified means, as an apparatus of compulsion to which, as such there adheres no political or ethical value, law apparatus whose value derives rather from some end which transcends the law’’
All of the definition have common elements in them like a law making authority, set of rule and regulations, an instrument of justice, protection of rights of the citizen, a technique of social organization, central idea of law is what you doing is should be accepted by the social group you are part of.
What is morality? In simple terms, morality is what kind of conducts are wrong and what kind of conduct are correct. morality is a concept of right and wrong. And morality has a wide sphere different human beings can have different moral principle on which they judge a conduct. morality can be based on several things your religion, culture, society, community, and your family values. So morality is subjective in nature everybody has different moral values. for example, female genital mutilation can be against the moral values of some communities and the same time can be according to moral values of some other.so morality does not enjoy that the independent status as the law. Morality is something an individual’s personal
Notion but accordance to the social group he is part of. Man is a social animal and can not live in isolation, this can be said reason for the foundation of moral principals because if you are living in a social group your conduct should be accepted, so this is situation where morality comes in picture, person living in isolation not required to check his conduct on morality parameters.
The relation between law and morality.
law and morality both overlap sometimes, both of these cannot be exclusive but sometimes something can be against the law but according to morality or something against morals can be according to law.
For example, if a hungry needy person stole a piece of bread, if we see this according to the law then stealing something is against the law but if we see this situation according to morals then, it is right because the person was trying to fulfil his fundamental need to keep his soul body together.
In another example a country refuse to give permission to refuges to take shelter in that country to protect its citizens right and make a law for the same purpose, it is against the morality because we should help the needy one but this is lawful.
the law is also an effective tool to enforce moral values and principal, for example, every citizen should pay the tax for development of the sate but there will be less number of taxpayers if there will be no law regarding this.in another example when we are driving on road we should obey traffic rules to protect others who also travelling with us, but if there will be no punishment regarding this nobody will follow these rules only because of moral values.
The relation between law and morality can be understood by two theories of law positivism theory and natural law theory.
Natural law theory: according to this theory both law and morality are connected. According to natural law theorist, human law is based on the principle of morality, not on any human-made principles.
The term natural law. status of law under natural theory does not depend on only acts, but also religion, custom, ethics. this theory talks about what ought to be. natural law is inherent and not required any authority to impose it.
Positivism law theory: according to this theory law is common of a sovereign authority. a command of human beings for other human beings where the previous one is more powerful and strong then other and enjoy the power status and authority of the lawmaker is unquestionable, and according to the matter of law it will decide what is right and what is wrong and if one not follow the law there will be a punishment. Jeremy Bentham considered the first positivist according to him law should be based on human experiences. The positive law might set the standard for the actions that are required and for those which are prohibited.
Historic case where the conflict between law and morality can be traced.
R v Dudley and Stephens
[Law and morality – the law knows no defence of necessity]
Three sailors and a cabin boy were shipwrecked and were adrift in an open boat 1600 miles from land. After they had been eight days without food, and six without water, DD decided that their only chance of survival was to kill the cabin boy and eat him, and this they did. Four days later they were picked up by a passing ship, and on returning to England were convicted of murder.
Held: Necessity can never be a defence to murder. Their sentence of death was later commuted to six months’ imprisonment.
Oppenheimer v Cattermole
[law and morality- an unfair law should be given preference above morality]
Mr.oppenheimer was a German citizen and working as teacher there. He was detained for a short time at the concentration camp at Dachau.and after that he went to Britain and become British subject.german authorities determined to make compensation to the employees of Jewish religious communities.mr.oppenheimer was given that pension and one more pension also awarded to him when he turned 65.
Now the question raised that he is liable to pay tax to the British government on his pensions or not.if he is the only British citizen then he has to pay but if he is also a citizen of Germany he can be exempted from this liability. the case first decide by UK Special Commissioners for income tax
And held that according to German law1913, “hen there were no complications of the countries being at war, which stated that a German lost their German nationality if they acquired a foreign nationality without permission.” he lost his German citizenship and liable to pay taxes.
Law and morality and current scenario
We are now living in the 21st century still there are some issues where law and morality stand against each other, sometimes law prevail morality and sometimes morality.
1.Section 377 of Indian penal code,1860 and morality
Section 377 of Indian penal code,1860 is related to homosexuality this section criminalise all the sexual act which are not according to the nature as punishable offence and prescribed punishment for the same, these acts include all the sexual acts which are nonvaginal or not productive, because of this section the member of LGBT(lesbian, gay, bisexual, transgender,) facing social discrimination because of there different sexual orientation then what is normally accepted. If we see this law from moral perspective every human being should be given equal rights to choose the way they want to fulfil their needs. But law talks differently, here law prevails the concept of moral principle.
2. Female genital mutilation
The practice of genital mutilation is practised in India by Dwoodi Bohra community,
A Shia Muslim community originated from Yemen, settled in the 16th century in India.
The main reason behind this practice is to follow shariat.
This is against the moral values this practice is very dangerous and always practised by an untrained person, that not have any kind of medical expertise, and because of these factors, the victim of this practice have to suffer physical and mental pain.
Any touching of female genital parts other than medical purpose is a crime under IPC and pocso act. something that is criminal cannot be essential practice, it is against the dignity and privacy of women. Still, this practice is carried out in India.
3.Nikah halala and morality
halala is a term that is driven from word “halal” that mean something permissible and according to law. nikah halala is part of the personal law of Muslim community.in this practice if a husband divorced his wife, and after that, if he wants to marry her again then for being eligible to re-marry her previous husband. The woman first should marry any other man and then consummate her marriage and after taking divorce from that person, she can marry her previous husband.
This kind of practices always favour male members of a community, and should be challenged for checking validity, this is against the general principle of morality.
4. Refuges and morality
helping a needy one is a moral duty or according to moral principles. today some countries in the word have more resources or some have not enough. So the countries should help each other in this type of situation because of morality. but what is happing right now is different picture, countries passing refuge entry preventing law. The reason given is a threat to the nation’s security, draining of resources and etc. for example the USA government banned entry of refuses from seven Islamic countries.
5.National registration of citizen(NRC) and morality
lakhs of Indian’s name is excluded from NRC list in Assam. They can lose their legitimate citizenship as an Indian citizen. if these citizens are part of declared foreign(DF) group. On May 2, 2018, the State Coordinator of the NRC issued an order to all Deputy Commissioners of respective districts of Assam asking to keep the names of brothers, sisters and other family members of Declared Foreigners (DF) pending.in other words, if a person is declared as a foreigner by a foreign tribunal then the name of other family members, his siblings will be drop out from NRC list. Since 1985, around one lakh (1,00,000) people have been declared as foreigners. Approximately 20,000 orders of Tribunal (mostly ex parte, that is issued without hearing both sides) have been set aside by different judicial forums. However, there are still 80 thousand declared “foreigners”. Let’s assume, on an average, a so-called “foreigner” has 4 siblings. That makes a total of three lakh twenty thousand (3,20,000) siblings. Along with the declared “foreigners”, this makes up a total of four lakh (4,00,000) people. The family members of those 4 lakh people will include their children and grandchildren. On an average at least 6 family members of each person (very liberal estimate considering higher fertility rate among poor and illiterate people who have been declared as“foreigners”) thus it makes over two million people! if we talk from the moral point of view the citizens living for so long time and suddenly they are declared foreigners and illegitimate, what will happen to their families? It is not a right thing to ask someone to left a country or their home after a long time that they settled well in their lives and contributing in countries progress but law view is something different according to which it is illegitimate.
Whatever way the conduct of human being is governed either by moral principles or by man-made law. They should be progressive in nature and should have that power to differentiate between wrong and right. fundamental necessities of individuals should not be affected by any type of law .law is an instrument to impose moral principles effectively. The moral is an intrinsic phenomenon but the law is external if someone is not following morality in his conduct there will be no effect but if one disobeys the law there is punishment for the same.