Author – SAEE VAISHAMPAYAN, Student from GOVERNMENT LAW COLLEGE, MUMBAI.
INTRODUCTION
Since the time law has been known as a powerful instrument of social control there has been a continuous discussion on its relationship with ethical qualities which means morality. The overall usual meaning of self-inflicted restrictions to unconstrained conduct came to be perceived as laws. All laws must come from necessity. The social awareness present in every man can be the biggest source of origin of the law. Laws are just the states of common affiliation, said Rousseau, despite he doubted the fact that if laws were sufficient to restrain human conduct. Who existed first Law or Evil was a good question for debate. The acknowledgment of certain interests as evil is the lone reason for the law.
The entirety of human life, however, cannot be ruled by legislation alone. In morals or ethics, this is also accurate. It is believed that while the law is largely concerned with people’s conduct on the outside, their inner conscience of all morality is what matters most. Morality tends to submit a person to his conscience, whereas law generally deals with the subordination of individuals to the will of the organised community. Human conduct serves as the basis for law, and morality describes the fundamental characteristics of human behaviour.
THE CONCEPT OF LAW
The Oxford English Dictionary defines the Law as – ‘the body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects.’ The term “law” itself is hard to understand and subject to many distinctions, but complexities necessitate distinctions, and distinctions are the strings of understanding winding through the labyrinth of human affairs. All of the characteristics of law, in its generic sense, are contained in the classic definition: “Law is an ordination of reason for the common good by him who has care of the community and promulgated.’’
Every society comes into being for some purpose, i.e., a society is a unity of order determined by its last end and goal, and different societies are classified according to their different ends.8 Thus societies are necessitated by the dignities and needs of the person. Laws are very necessary for any society because they are important means to attain the end of the State, and the goal to which all laws aim is the common good, i.e., the attainment of the end for which a society exists. In most societies, this goal is that of affording the individual an opportunity to live a full life.
The term law is used in a variety of meanings having an essential similarity of meanings and not as having one meaning only because the sources and applications differ. The natural law, is in the order of the common good, prescribes the end of justice and the jus gentium’ which (means international law) prescribes the means of justice-but both constitute the end and means in a universal sense and therefore there exists a need for a norm or law on the particular and practical order of concrete acts: the positive law. Thus, positive law declares and supplements natural laws by more definite determinations and its chief function is to implement natural law in different civilizations and cultures. However, positive law is subject to error because it treats the contingent rather than the necessary; therefore, since the matter of positive law is mostly determination and hence -opinion, positive Law may be different from the idea of common good yet, perhaps it brings the common good.
RELATIONSHIP BETWEEN LAW AND MORALITY
The popular belief about the relationship between law and morality is that – in some way law is made to promote morality. To continue those values which will make perfect conditions for human life. Those conditions will allow man to lead righteous social life. The common man sees law as a scheme of justice, and justice itself as a very disorderly mass of moral values. Accordingly, the positive law is thought of as a code of rules, analogous to the code of moral laws, deriving its force from the compulsory existence of certain moral laws, and being, as it corresponds with or varies from them, just or unjust. This, like all other common ideas, is insufficient for scientific reasons, and the jurist, at least because he is himself a philosopher, is obliged to abandon it. And this is disputed by the truth. Positive laws do not depend on moral laws and traditional notions of justice do not have a court of appeal against the decisions of the State. The common citizen confuses law and morals, and identifies the laws of law with the ideals of abstract justice.
There was little difference between law and morality in the early days of civilization. In Hindu law, the primary source of which is Vedas and Smritis, we do not see such a distinction in the beginning. Subsequently, however, Mimansa laid down some rules which would make it compulsory to differentiate from the prescribed injunctions. In the West, too, the location was close. The Greeks invented the philosophical moral basis of the law under the name of the theory of ‘natural law.’ In the name of ‘natural law,’ the Roman jurist accepted those universal values as the basis of the law. In the Middle Ages, the Church has been influential in Europe. The spiritual basis was given to ‘natural law,’ and Christian morality was believed to be the basis of law.
Law and morals also mix, both of them cannot be exclusive, because sometimes something can be against the law, but according to morality or something against morality it can be according to the rule of law. For e.g., if a hungry starving person steals a slice of food, if we see this according to the rules, then stealing things is against the law, but if we see this case according to the morality then, it’s right because the person was trying to satisfy his fundamental need to hold his soul body alive. For another scenario, a government refusing to allow refugees to take refuge in that country in order to defend its citizens’ rights and to make a law for the same reason is against morals, but that is lawful.
The law is also an important instrument to implement moral values, and the idea, for example, is that any individual can pay tax for the growth of the society, so there would be less taxpayers if there is no law to do so. In another example, as we move down the road, we should abide by traffic laws to protect those who also travel with us, although since there is no penalty for this, no one can obey these laws purely on the grounds of religious principles.
The relationship between law and morality can be understood through two philosophies of the theory of positive law and the theory of natural law.
The Natural Law Theory –
According to this philosophy, both law and morality are related together. Human law, according to natural law scholars, is founded on the principle of justice, not on any human-made principles. The word “natural law.” The position of law under natural philosophy relies not only on actions, but also on religion, traditions and ethics. This idea is talking about what needs to be done. Natural law is inherent and no authority is necessary to implement it.
The Positivist Law Theory –
According to this principle, the law is universal to sovereign authority. The command of human beings for other human beings, where the former is more strong and powerful than the other and retains the position of supremacy and jurisdiction of the lawmaker, is unquestionable and, in compliance with the constitution, determines what is right and what is wrong and, if one does not obey the law, there will be retribution. Jeremy Bentham thought that the first positivist, according to him, legislation should be based on the human experience. Positive law should set the norm for acts that are necessary and those that are prohibited.
Landmark judgements in which the dispute between law and morality can be traced :-
R v Dudley and Stephens – 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. They were tried for the killing of the boy and the jury returned a special verdict. Necessity will never be a defence against murder. Their death sentence was later commuted to six months in jail (the law knows no defence of necessity).
Oppenheimer v Cattermole – Mr. Oppenheimer was a German resident who worked as a teacher there. He was imprisoned in Dachau concentration camp for a brief period. And then he went to Britain to become a British subject. The German authorities were determined to pay the workers of Jewish religious groups. It was given to Mr. Oppenheimer that he already got a pension and one more at the age of 65. The query now emerges as to whether or not he is liable to pay tax on his pensions to the British Government. 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 decides by UK Special Commissioners for income tax and held that according to German law1913, “when 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 (an unfair law should be given preference above morality)
CURRENT SCENARIO
1. Section 377 of Indian penal code,1860 and morality:- Section 377 of Indian penal code,1860 is related to homosexuality this section criminalises all the sexual act which are not according to the nature as punishable offence and prescribed punishment for the same. These involve all sexual activities that are non-vaginal or non-productive, as a result of which LGBT(lesbian, gay, bisexual, transgender) participants experience social prejudice as a result of their sexual identity different from what is generally recognized. If we look at this law from a spiritual point of view, every human being should have equal freedom to choose the way they want to satisfy their needs. Yet the rule speaks differently, the idea of moral value prevails here.
2.Female genital mutilation :- The ritual of genital mutilation is performed by the Dwoodi Bohra community of India. A Shia Muslim community originated in Yemen and settled in India in the 16th century. The primary reason behind this tradition is to obey the shariate. This goes against the moral values that this process is very risky and is often performed by an untrained person who does not have any sort of medical qualifications, and because of these reasons, the victim of this practice must suffer physical and emotional distress. Any handling of female organs, rather than for medicinal reasons, is a felony under the IPC and Pocso Act. What is illegal cannot be an essential procedure, it is against the rights and privacy of women. Still, this practice is being practiced in India.
3. Refugees :- Helping refugees is a moral imperative or a moral duty. Today, some countries have more money or some do not have enough. So, countries should support each other in this kind of situation on the grounds of morals. But what is happening right now is a different picture, countries that enact refugee admission blocking the rule. The justification given is a threat to the protection of the country, the draining of resources and so on. For example, the US government forbade the entry of refugees from seven Islamic countries.
4.National registration of citizens(NRC) :- Lakhs of Indian names are removed from the NRC list in Assam. They can forfeit their lawful citizenship as an Indian resident. If these people are members of an international community declared as such. On 2 May 2018, the NRC State Coordinator released an order to all Deputy Commissioners of the respective districts of Assam demanding that the names of the daughters, sisters and other family members of the Declared Foreigners (DF) be kept pending. In other words, if an individual is declared a foreigner by a foreign court, then the names of other family members, his siblings will be excluded from the NRC registry. Since 1985, around 1,000,000 lakhs have been declared aliens. About 20,000 Tribunal decisions (mostly ex parte, issued without hearing both sides) have been set aside by various judicial fora. However, there are already 80 thousand “foreigners” announced. Let’s say, on average, that the so-called “foreigner” has four relatives. This makes a total of three lakh twenty thousand (3,20,000). Along with the designated “foreigners,” this makes up a total of four lakhs (4,000,000) of people. The family members of the four Lakh citizens will include their children and grandchildren. On average, at least 6 family members of each citizen (very liberal estimation given the higher fertility rate among poor and illiterate citizens who have been declared ‘foreigners’) make more than two million people! If we speak from the spiritual point of view of the people who have been living for too long and are unexpectedly branded aliens and illegal, what will happen to their families? It is not fair to force someone to abandon a country or their home after a long time that they have settled well in their life and have contributed to development in nations, but the rule is unusual in that it is illegitimate.
CONCLUSION
There will never be a hard jacket or a universal formula that might dictate where the statute should be used to impose morality. It can only be inferred that the extent of compliance of moral principles relies on a particular instance scenario. In situations where morality has a constructive and advantageous effect on society, the rule may, if appropriate, be used to impose positive morality. For example, in the case of International Humanitarian Laws, such moral principles are either accepted as part of the rule or in another explanation of the fact that both religious and moral norms state that steel must not be destroyed or not killed, and that morality is upheld through Law. On the other hand, that morality which produces some negative result in any form in society, the rule should never be used to impose that morality. For e.g., the celebration of Valentine’s Day in Indian culture is considered unprincipled. The morals of this sort must never be granted the formal form of law.
Government and administration include questions of value, questions about what is right and what is good for humanity, as well as what is bad and what is going to benefit us. To instruct us of the right, to guide us towards it, and to defend us from evil—whether our own or anyone else’s—are all part of the responsibility of the law. Those who seek to exile morality from the legal code, who wish to banish virtue from the law and to make the law a moral-free zone, have set aside these important and valuable features of the law. If these people succeed, we and they will suffer incalculable harm, having shut down or silenced. By doing this, we risk losing one of our most valuable keys to sound social behaviour and its benefits.
Whatever way the conduct of human beings 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. Morality is an innate phenomenon, so the rule is external if no one practices morality in his actions, but if one disobeys the law, there is a penalty for the same matter.