“Conflict Between Law and Morality”
* Aakriti Pandey
Student of RMLNLU, Lucknow
In ancient times there was no distinction between law & morals. The Hindu jurist in ancient India did not make any distinction between law & morals. However, later on, some distinction came to be made in actual practice. The Mimansa made a distinction between obligatory and recommendatory rules. By the time the commentaries were written, the distinction was clearly established in theory also, the commentators not only pointed out the distinction but also dropped in actual practice those rules which were based purely on morals. The doctrine of “factum valet”
was recognized. That doctrine means that an act which is in contravention of some moral injunction should be considered valid if accomplished in fact. In its decision, the Privy Council made a distinction between legal and moral injunction. The same is the case with Supreme court of India.
The same was the condition in Europe. In the name of doctrine of natural rights, the Greece formulated a theoretical moral foundation of law. Like wise, the roman jurists recognized, in the name of natural law, certain moral principles as basis of law. During the Middle ages, Christian morals were considered as the basis of law. After the reformation in Europe, it was contended that law and morals are distinct and separate and the law derived its authority not from morals but from the state. Morals had their source in religion or conscience. During the 17th and 18th century, the theory of natural law had a moral foundation and law was linked morals. During the 19th century, John Austin maintains that law had nothing to do with morals and we define law as command of sovereign. Law alone is the subject matter of jurisprudence.
Kelsen emphasized on study of law excluding all other considerations including morals. The sociological approach to law indirectly studies morals also although s distinction in law and morals and law alone is considered as the proper subject-matter of study. However, they study other forces also including morals while tracing the origin, development, function and ends of law.
DISTINCTION BETWEEN LAW AND MORALS:-
If we look at the form and content of law, we find that a legal norm may be common with that of religious and moral norm. For example, all religious and moral norms say not to kill or not to steel, and it is the same here in law. So, we have almost the same content between law and morality. Then the question arises that, if it is so, then what is the difference between law and morality?
There is a distinction between law and morals. Vinogradoff writes “law is clearly distinguishable from morality. The object of law is the submission of individual to the will of organized society while the tendency of morality is to subject the individual to the dictates of his conscience.” Law or morality both are normative systems of our society as both are normative and institutionalized by nature. The only difference between law and morality is that law is coercive by nature but morality is not. Law is enforced by coercion and its constant application on a society leads to the internalization of law in human soul. Initially, law gives only an external behavior or an overt effect, but with the pace of time the forceful obedience of laws takes the shape of an internalized realization of habitual obedience. For example, the road traffic laws, when are applied on a society get internalized in a citizen's behavior after certain time. According to Pollock, “Though much ground is common of both, the subject matter of law and ethics is not the same. The field of legal rules does not coincide with that of moral rules and is not included in it and the purposes for which they exist are different”. Durguit writes “law has a basis in social conduct. Morals go on intrinsic value of conduct. Hence, it is vain to talk about law and morals. The legal...
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