law justice and morality
law justice and morality are often used interchangeably in layman terms. Though they all are part of the same system and have a lot of common factors, it cannot be ignored that they connote different meaning in the Legal term. Before understanding the interlinking of law justice and morality, it is necessary to understand their individual meaning.
As of now, there is no definition that is universally accepted. Jurists have made effort to define it on the basis of ‘nature’ ‘source’ ‘effect’ ‘purpose’ and other factors.
Society is one of the major factors in explaining the law. Law tells people what they should and must do and what they must not do. For example, the law tells people that they should not hurt people and if they do they will be punished. In the same way, even society tells us what to do and what not to do. If we do not obey society looks down on us. For example o respect elders.
Law is a social science and to keep up with the change in society it has to change thus there can be no perfect definition of law because of the ever-changing society.
To give the definition of law the analysis of various legal concepts against various disciplines like sociology, political science, history, psychology, economics is needed to be done with the element of logic and practicality, to meet the ends of justice.
Suggested books for the topic
The concept of justice is an age-old justice. It is necessary for the growth of the society. Society demands that people should live peacefully in society. While living in the society we experience a conflict of interest and expects that other people have rightful conduct towards him. But on contrary he being ‘selfish’ by nature, and may not act justly to others. Thus it is necessary that there should be some external force which is necessary for maintaining the society. Salmond and Roscoe’s pound have emphasized the importance of justice in their definition of Law. For Salmond without justice, an orderly society is unthinkable.
Blackstone: Justice is a reservoir from where the concept of right, duty, and equity evolves.
The essence of legal justice lies in ensuring uniformity and certainty of law and at the same time ensuring that rights and duties are duly respected by the people. Justice ensures impartiality. One has to be just not to himself but toward all members of the society.
Law and Justice in modern society
“Justice according to law” is the modern view of the justice in society. Dicey has called this principle as “Rule of Law”. This includes that everyone is equal before the law and there should be no arbitrariness and law should apply justly to everyone without any differentiation. ‘No one is above law’
Citizens can enforce and protect their legal civil rights and to resolve the disagreement between two or more parties through the civil justice system. The system ensures the protection of rights instead of punishment.
The main aim of criminal justice is to punish the offender. It is state who punishes the offender. the end of criminal justice is to punish the offender and create a society so that there is no crime. Punishment is in some form of pain and to create example is society and to show the subjects of the state that if they won’t follow the law same will happen with them
Four theories of punishment are:-
- Deterrent: To create an example in society.
- Retributive: an eye for an eye and tooth for a tooth
- Preventive: preventing the criminal from repeating the offense through measures such as imprisonment, the death penalty.
- Reformative: Reformation of offenders through the method of individualization
In the ancient time, there was no distinction between Law Justice and morality. In Hindu law, there were Smritis and Vedas. The Greeks in the name of ‘natural rights’ formulated a theoretical moral foundation of law. The Romans recognized moral laws on the basis of ‘natural law’. In middle age, churches came in power and Christian morals were considered as the basis of law.
The modern trend in morality
When the churches were removed from power, it was asserted that law and morals are different. Law derives its authority from state and not from morals. In the 18th century ‘Natural law’ theory was becoming popular and it had a moral foundation. It was again considered that law and morals are same. In the 19th Century, Austin propounded his theory that morality has nothing to do with the law. Law is the command of sovereign backed by sanctions. In the 20th century, Kelsen said that only legal norms are subject of jurisprudence. He excluded all other extraneous things including the morals from the study of law.
India: In ancient time there was no distinction between law and morals. In modern times, the Privy Council in its decision always made a distinction between law and morals.
The distinction between law and morals
Morals are an end in itself. They should be followed because they are good in themselves. They are concerned with the character of the individual and helps in molding the character. Morals look into the motive behind the act of the person. The obedience of morals is a matter of individual conscience. Morals are generally universal. Roscoe Pound said “ As to the application of moral principles and legal percepts respectively, it is said that moral principles are of individual and relative application; they must be applied with reference to circumstances and individuals, whereas legal rules are of general and absolute application”
Law is not an end in itself, it is meant to an end. Its aim is smooth functioning of the society. Law concentrates on the society and lays down rules concerning the relationship of individuals with each other and with the state. It is concerned with the conduct of the individual. Law can only function properly with the help of the proper functioning of the state and when all the subjects surrender themselves to the state. Law is relative, relative to time, place, and people. It is applied uniformly to all people.
|An end in themselves,||Means to an end. Aims at smooth functioning of the society|
|Concerned with the character of person||Concerned with society|
|They look into the motive behind the conduct||They look into the conduct|
|Should be followed because good in themselves||Should be followed because necessary for proper functioning of society|
|It is a matter of individual conscience||State ensures proper enforcement of the law|
|Morals are universal||They are relative to time, place|
|They are applied to individual cases||Laws are applied uniformly|
The relationship between Law and Morals
Though there are many differences between law and morality, it should not be presumed that there is no similarity between the law and morals. They have the same center but different circumference. They are very closely related. It depends on the definition of the law whether they will include morals or not. Different schools have given a different definition of law.
The relationship between Law and Morals can be studied from 3 angels
- Morals as the basis of law
- Morals as the test of positive law
- Morals as the end of the law
1. Morals as the basis of law –
- The law and morals have a common origin but due to the course of development, they came to differ. In the earlier society, there was no distinction between law and morals. They had a common source and their sanction was of the same nature. Later on, with the development of the society and formation of the state, it picked up those rules which were necessary for the functioning of the state and applied its own sanctions to enforce them. These rules are called ‘law’. The ruled which were for the ‘good’ of humanity but the state could not ensure its observance were left as they were. These are called ‘morals’. Thus it could be said that law and morals have a common origin, but diverge in their development. Many rules are common to both of them such as NOT killing a person, NOT stealing.
Queen vs Dudley and Stephen’s Case: 14 Queens Bench Division 273 (1884)
Criminal Law–Murder–Killing and eating Flesh of Human Body under Pressure of Hunger–”Necessity”–Special Verdict–Certiorari–Offence on High Seas–Jurisdiction of High Court.
Summary: The Defendants, Thomas Dudley (Mr. Dudley) and Edwin Stephens (Mr. Stephens) (Defendants) and two other gentlemen, Mr. Brooks and the victim, Richard Parker (Mr. Parker), were stranded on a boat for several days. When it appeared that the whole party would likely die of thirst and starvation, the Defendants decided to sacrifice Mr. Parker for the good of the rest.
A man who, in order to escape death from hunger, kills another for the purpose of eating his flesh, is guilty of murder; although at the time of the act he is in such circumstances that he believes and has reasonable ground for believing that it affords the only chance of preserving his life.
At the trial of an indictment for murder it appeared, upon a special verdict, that the prisoners D. and S., seamen, and the deceased, a boy between seventeen and eighteen, were cast away in a storm on the high seas, and compelled to put into an open boat; that the boat was drifting on the ocean, and was probably more than 1000 miles from land; that on the eighteenth day, when they had been seven days without food and five without water, D. proposed to S. that lots should be cast who should be put to death to save the rest, and that they afterwards thought it would be better to kill the boy that their lives should be saved; that on the twentieth day D., with the assent of S., killed the boy, and both D. and S. fed on his flesh for four days; that at the time of the act there was no sail in sight nor any reasonable prospect of relief; that under these circumstances there appeared to the prisoners every probability that unless they then or very soon fed upon the boy or one of themselves, they would die of starvation:
Held, that upon these facts, there was no proof of any such necessity as could justify the prisoners in killing the boy and that they were guilty of murder.
Ratio Decidendi: A person may not sacrifice another person’s life to save his own.
Mr. X. Vs Hospital Z (1998) 8 SCC 296
Appellant’s blood was found to be HIV (+). On the account of disclosing the information without the consent of the appellant, proposed marriage of the appellant was called off. Further, he suffers shame in the society. Appellant sued the hospital on the ground that hospital had the duty to maintain confidentiality and the right of the appellant is protected under ‘Right to life’ under Article 21 of the constitution.
The issues before the Supreme Court were as follows:
1. Whether the Respondents were guilty of violating the Appellants right to privacy guaranteed under article 21 of the constitution? 2. Whether the Respondents were guilty of violating their duty to maintain secrecy under medical Ethics?
The judgment of The Supreme Court:
The Judgement of the Supreme Court was as follows:
1. In deciding the first issue, the Court held that in the event of a conflict between the Appellants fundamental right to privacy and Ms. As fundamental right to be informed about any threat to her life/health, in such an event the Latter’s right to be informed will override the Appellants right to privacy. Hence the Court held the Respondents not guilty on the first count.
2. In deciding the second issue, the Court held that the duty to maintain secrecy in every Doctor-Patient relationship was also not absolute and such duty could be broken and hence secret divulged where compelling public interest so requires. Hence the Court held the Respondents not guilty on the second count as well.
3. The Court further held that The Appellants right to marry was suspended until complete cure of the Appellants dreadful disease. The Court based this decision on various Statutes which give the right to the spouse to seek divorce on the ground of the other suffering from a communicable venereal disease such as AIDS.
4. The Court held that in the event the Appellant did decide to marry while suffering from such dreadful disease, he shall be punishable under section 269 & 270 of the Indian Penal Code.
5. The court held that AIDS is the product of undisciplined sexual impulse. This impulse is a notorious human failing if not disciplined can afflict and overtake anyone however high or low he may be in social strata. The Court cannot assist that person to achieve that object.
6. The Court held that the Hippocratic Oath taken by medical men at the time of entering the profession is not enforceable in the Court of law as it lacks statuary force.
“As a human being, Ms. ‘Y’ must also enjoy, as she, obviously, is entitled to, all the Human Rights available to any other human being. This is apart from, and, in addition to, the Fundamental Rights available to her under Article 21, which, as we have seen, guarantees “Right to Life” to every citizen of this country. This right would positively include the right to be told that a person, with whom she was proposed to be married, was the victim of a deadly disease, which was sexually communicable. Since “Right to Life” includes right to lead a healthy life so as to enjoy all faculties of the human body in their prime condition, the respondents, by their disclosure that the appellant was HIV (+), cannot be said to have, in any way, either violated the rule of confidentiality or the right of privacy. Moreover, where there is a clash of two Fundamental Rights, as in the instant case, namely, the appellant’s right to privacy as part of right to life and Ms. ‘Y’s right to lead a healthy life which is her Fundamental Right under Article 21, the RIGHT which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral considerations cannot be kept at bay and the judges are not expected to sit as mute structures of clay, in the Hall, known as Court Room, but have to be sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day”
Morals as a test of positive law
In early times it was contended that law must be in conformity with morals. It was supported by Greeks and Romans. The Romans recognized moral laws on the basis of ‘natural law’. Later churches came in power and said that if the law is not in conformity with the Christian law it is invalid. When the churches were removed from power, it was asserted that law and morals are different.
Law derives its authority from state and not from morals. In the 18th century ‘Natural law’ theory was becoming popular and it had a moral foundation. It was again considered that law and the rules are same. In the 19th Century, Austin propounded his theory that morality has nothing to do with the law. Law is the command of sovereign backed by sanctions. In the 20th century, Kelsen said that only legal norms are subject of jurisprudence. He excluded all other extraneous things including the morals from the study of law.
Now it cannot be said that if the law is not in conformity with morals it is not binding. However l, aw more or less is in conformity with morals. The conformity of morals with lathe w is via very important factor for its obedience.
Morals as an end of the law
Morals have often been considered the end of the law. Many jurists have defined law on the basis of ‘Judtice’. And thus there is a relationship between law justice and morality. Most jurists say that the end of the law is to secure ‘justice. Justice has more or less been defined in the terms of ‘morals’. Thus the law is used to give an idea of both morals and justice.
Laws and morals have in an fluence on each other. In judicial arbitration and also in law making it plays a big role because it can not be against the morals of the society.
Books Referred: Jurisprudence