Category : Jurisprudence – II
Meaning of law
Law is also defined as a set of rules and principles which enforce particular types of behaviour.
Law means justice ,Statutes, Acts, rules, regulations, orders, ordinances, etc. from the point of view of society;
- The laws are mainly concerned with the society as a whole and lay down the rules for relationship of individual with each other and with the state.
- Law is concerned with the external conduct of the individuals.
- Laws are meant by which the evils ends. The justice is achieved.
According to Salmond “the law may be defined as the body of the principles recognized and applied by the State in the administration of justice”.
According to Austin, “law is the aggregate of rules set by men as politically superior or sovereign to men as politically subject”.
Meaning of moral
morality may be defined as a set of beliefs, values,
principles and standards of behavior
Morality refers to as what is good or bad. Morality speaks of a system of behavior in regards to standards of right or wrong behaviour.
or one who is capable of right or wrong action. It designates the customary values and standards embedded in a particular way of life.
1.The morals are concerned with individual and are the laid down rules for the moulding of his character.
2.Morals are mainly concerned with the internal conduct of the nature of a person.
3.The morals are an end in themselves.
- The observance of morals is a matter of individuals conscience.
- Morals are considered to be universal in nature and value.
The relationship between law and morality is complex.
The relation between law to morals is sometimes describe as two intersecting circles, the part inside the intersection representing the common ground between law and moral. • The part outside representing the distinctive realms that each other holds (exclusive sway). By having moral code human are ought to refrain themselves from doing something that is against the code – supplement with law. Morality is the basis of law – In a primitive society, there was no difference between law and moral rules as they share the same sources (custom, religion).
RELATIONSHIP BETWEEN LAW & MORALS
In the ancient society there was no difference between laws and morals, but in modern times various theories of law separate morals from laws so many differences as pointed out above came into picture. In spite of these differences there is a clear relationship between law and morals. For this purpose it can be noticed from the following three points :-
- Morals as the basis of law:- In the ancient society morals were the basis of all laws. All the rules originate from the common sources i.e. morals. The reason behind them was in the form of supernatural or divine fear. The state picked up those rules which were necessary for the society of the state.
The state put its own sanctions behind their rules and enforced them and these rules were called laws. The rules for which the state could not ensure their observance were known as morals. Thus laws and morals have common origin. We cannot totally separate law from morals. Queen v/s Dudley: It was held that moral are the basis of law on the ground of morality,
- Morals as the list of law:- It has been argued that the law must conform to morals. It means the law must be based upon morals and it should not be against morals. The Roman law was based upon natural law and Christian morals and principles say that any law that is against morals is invalid. The natural law theories were enforcing which were also according to morals.
In the modern times the laws which are not in conformity with morals are not good laws. However in practice to a great extent law conforms to morals. Laws cannot depart from morals due to many reasons. The conformity of law with morals is a very important factor even in the modern times.
- Morals as the end of Law:- Sometimes morals are considered as the end f law. Justice in its popular sense is based upon morals. The word used for law conveys an idea of justice and morals in the same area of law. Sociological school says that law always has a purpose. Law is a means to get the end. This aim of law is to secure social test of law. This can be done properly in the contest of socially recognize values which are closely related to morals. Thus ultimately morals become the end of law. In India the legal system is engaged from the personal laws and local customs.
There are three main theories which deal with law and morality.
Firstly the liberal view known as the Harm to others; principle expounded by John Stuart Mill in 1859.fn3 Mill thinks that the only purpose for which power can be rightfully exercised over any member of a civilised society against his will is to prevent harm to others. Mill believed that the law should not be used to enforce moral principles on society but to protect harm to its citizens. Preventing someone from harming himself is excluded by this harm to others principle. Criminal offences such as murder, murder and non fatal offences against the person are examples of the type of harm which Mills thinks the law should enforce.
The second theory is known as the Moralistic view, harm to society principle which was put forth by Lord Devlin His view is that a recognised morality is essential to the very essence and being of society. He thought that individual liberty and freedom should be curtailed in order to protect the society. Devlin said that society may use the law to preserve morality in the same way that it uses the law to safeguard anything that is essential to its existence.
The final theory is the most modern and is the Paternalistic view, harm to self and others view as put forward by Professor Hart His theory is that the law should only intervene in the private lives of citizens to prevent harm to others and harm to oneself. He did acknowledge that there was a difficulty in defining harm but did acknowledge that it did not include moral harm to oneself. An existing law illustrating this theory is the law which prevent methods of prostitution. The Paternalistic view focuses very much on the individual.
CONCUSION:- So morals also have influence to a great extent in the development of law. Morals also check the arbitrary powers of the legislature. All human conduct and social relations cannot be regulated and governed only by law. A considerable number of them are regulated by morals. Thus we can say that the morals are the very important factor in the development of law. Morals are basis of law.
It can be concluded in the end that law are made keeping in context of morality or ethics.
Example is 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.
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.
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 crossroads. Hopefully, in the coming years, a growing understanding will lead to peaceful and productive solutions.