LAW AND MORALITY

PROJECT BY:

NAME: Mukul Rathore

COURSE: B.A.LL. B (Hons.)

ROLL NO: 1742

SEMESTER: 6th

SUBMITTED TO:

Dr. Manoranjan Kumar

Assistant Professor
A FINAL DRAFT SUBMITTED FOR THE PARTIAL FULFILMENT OF THE COURSE
JURISPRUDENCE-II FOR THE DEGREE OF B.A.LL. B

March 2020

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR,

1|Page
DECLARATION
I, hereby declare that the project entitled “LAW AND MORALITY” submitted in partial
fulfilment of the requirements for award of the degree of B.A.LL.B. at CHANAKYA
NATIONAL LAW UNIVERSITY, is an authentic work and has not been submitted to any other
University/Institute for award of any degree/diploma. 

MUKUL RATHORE
(1742)
B.A.LL.B.
THIRD YEAR.

2|Page
ACKNOWLEDGEMENT

Firstly, I would like to express our immense gratitude towards our institution Chanakya National
Law University, which created a great platform to attain profound technical skills in the field
of B.A.LL.B. in the subject Jurisprudence Ⅱ, thereby fulfilling our most cherished goal. 

I sincerely express thanks to my guide and teacher Dr. Manoranjan Kumar who helped me
complete this project to the best of my capabilities and patiently attended to my queries and
doubts.

I express deep gratitude to my family and friends who continue to push me in the daunting times
of project submission and ultimately, whether directly or indirectly, helping me complete this
project successfully. 

MUKUL RATHORE
(1742)
B.A.LL.B.
THIRD YEAR.

3|Page
Contents
INTRODUCTION...........................................................................................................................................5
AIMS AND OBJECTIVES:....................................................................................................................6
RESEARCH METHODOLOGY:...........................................................................................................6
HYPOTHESIS:.......................................................................................................................................6
LIMITATION:........................................................................................................................................6
MODE OF CITATION...........................................................................................................................6
DISTINCTION BETWEEN LAW AND MORALS................................................................................................7
RELATIONSHIP BETWEEN LAW AND MORAL.............................................................................................11
LEGAL ENFORCEMENT OF MORAL.............................................................................................................15
INFLUENCE OF MORALS ON LAW..............................................................................................................16
CONCLUSION.............................................................................................................................................17
BIBLIOGRAPHY...........................................................................................................................................18

4|Page
INTRODUCTION
In the early stages of the society there was no distinction between law and morals. In Hindu law,
the prime sources of which are the Vedas and the smritis, we do not find such distinction in the
beginning. However, later on, Mimansa laid down certain principles to distinguish obligatory
from recommendatory injunctions. In the west also the position was similar. The Greeks in the
name of the doctrine of "natural rights" formulated a theoretical moral foundation of law. The
Roman jurists in the name of "natural law" recognized certain moral principles as the basis of
law. In the middle ages the church became dominant in Europe. The "natural law" was given a
theological basis and Christian morals were considered as the basis of law.

In the post-reformation Europe "when the yoke of the church was thrown off' it was asserted that
law and morals are distinct and separate, and law derives its authority from the state and not from
the morals. Morals have their source in the religion or conscience. However, in the 17th and 18lh
centuries "natural law" theories became very popular and more or less, they had a moral
foundation. Law again came to be linked with morals. Again, there came a reaction. In the 19th
century Austin propounded his theory that the law has nothing to do with the morals. He defined
law as the command of the sovereign. He further said that it was law "command" alone which is
subject-matter of jurisprudence. Morals are not a subject-matter of study for jurisprudence. Many
later jurists supported the view of Austin. In the 20th century Kelsen said that only the legal
norms are the subject-matter of jurisprudence. He excluded all other extraneous things including
the morals from the study of law. There is change in the trend of thought in modern times. The
sociological approach to law indirectly studies morals also. Though they always make a
distinction between law and morals and consider the former the proper subject-matter of study, in
tracing the origin, development, function and ends of law they make a study of the forces which
influence it. Thus, their field of study extends to the various social sciences including morals.
There is again a new trend in modern times. The sociological approach to law indirectly studies
morals also although a distinction is made between law and morals and law is alone considered
as the proper subject matter of study. however, they study other forces also including morals
while tracing the origin, development, functions and ends of law.

5|Page
AIMS AND OBJECTIVES:

The aim of the researcher is to critically analyse Law and Morality.

RESEARCH METHODOLOGY:

The researcher will be relying on Doctrinal method of research to complete the project.

HYPOTHESIS:

Researcher presumes that the boundary between law and morality is strict and exclusive.

LIMITATION:
1 There is a time limitation for the researcher to finish the research.

2 The researcher is limited to his own self for the research.

MODE OF CITATION

The researcher has used blue book mode of citation for the purpose of citation in his research.

6|Page
DISTINCTION BETWEEN LAW AND MORALS
There is a distinction between law and morals. According to pollock “though much ground is
common to both, the subject matter of law and ethics is not the same. The field of legal rules of
conduct does not coincide with that of moral rules and is not included in it and the purpose for
which they exist are different. According to Arndts, there are four points of difference between
law and morals.1

1) In law man is considered as a person because he has a free will. In morals, we have to do with
determining the will towards the good.

2) Law considers man only in so far as he lives in community other others; morals give a guide
to lead him even if he were alone.2

3) Law has to do with acts insofar as they operated externally, morals look to the intention - the
inner determination and direction of the will.

4) Law governs the will so far as it may be external coercion; morals seek a free self -
determination towards the good.

HART: professor H.L.A Hart writes that the vague sense that the difference between law and
morals is connected with a contrast between the internality of the one and the externality of the
other, is too recurrent a theme about law and morals to be altogether baseless and cannot be
dismissed. He refers to four cardinal features which are designed to distinguish morality not only
from legal rules but also other forms of social rules. Those features are “Importance, Immunity
from deliberate change, Voluntary character of moral offences, and Forms of moral pressure3

(a)Importance: An essential feature of any moral rule or standard is that it is regarded as

1
V.D. Mahajan, jurisprudence & legal theory, p86(5th ed. 2019)
2
Ibid.
3
V.D. Mahajan, jurisprudence & legal theory, p87(5th ed. 2019)

7|Page
i) In the simple fact that moral standards are maintained against the drive of strong passions
which they restrain and at the rate of sacrificing considerable personal interest.4

ii) In serious forms of social pressure exerted not only to obtain conformity in individual cases
but to secure that moral standards are taught or communicated as a matter of course to all in
society.

iii) In general recognition that if the moral standards were not generally accepted, for reaching
and distasteful changes in the life of the individuals would occur.

In contrast with morals, the rules of development, manners, dress and a few rules of law occupy
a relatively low place in the scale of serious importance. They may be tiresome to follow but
they do not require much sacrifice. no great pressure is to put to obtain conformity and no great
alterations in other areas of social life would follow if they were not observed or changed. Much
of the importance ascribed to the maintenance of moral rules may be simply explained on
rationalistic lines. Legal rules may not have the same importance as moral rules have. For a legal
rule may be though important to maintain and may commonly be agreed that it should be
repealed.5

(b)Immunity from Deliberate Change

It is a correct to say of a legal system that new rules can be inserted and old ones can be changed
or repealed, but there are some rules which may be changed from deliberate change through a
written constitution limiting the competence of the supreme legislature. However moral rules
cannot be brought into existence or altered or done away with in this way. Standard of conduct
cannot be endowed with or deprived of moral status by human fiat, though the day-to-day use of
such concepts as enactment and repeal indicates that the same is not true of law. Though a moral
rule or tradition is immune from repeal or change by deliberate choice or enactment, the
enactment or repeal of laws may well be among the causes of a change or decay of some moral
standard or tradition. The incompatibility of the idea of morality or tradition with that of change
by deliberate enactment should be demarcated from that of the immunity enjoyed by certain laws
in some system through the restrictive clauses of the constitution.6
4
Ibid.
5
V.D. Mahajan, jurisprudence & legal theory, p88(5th ed. 2019)
6
Ibid.

8|Page
(c) Voluntary Character of Moral Offence: the contention that the morals are connected with
what is known as internal conduct while law is connected with external conduct, is in part a
miss- statement of the two features. If a person whose action has offended against moral rules
succeeds in establishing that he did that unintentionally and in spite of every precaution that was
plausible for him to take, he is excused from moral responsibility and to blame him in these
situations would be morally condemnable. More blame is excused because he has done all that
he could do.in any developed legal system, the same is true up to a point as the general
requirement of mens rea is an element in the criminal-responsibility designed to secure that those
who offend without carelessness unwittingly, or in conditions in which they lacked the bodily or
mental capacity to conform to law, should be excused. A legal system would be open to serious
moral criticism if this were not so, at any rate in cases of serious crimes carrying severe
punishments.7

(d) Form of Moral Pressure: The fact that have led to the interpretation of morality as internal are
that if it were the case that whenever someone was about to break a rule of conduct only, threats
of physical punishment or unpleasant consequences were used in argument to dissuade him,
then it would be improbable to treat such a rule as a part of the morality of the society, though
that would not be any objection to treating as a part of its law. The typical form of legal pressure
may be said to consist in such threats, whereas with morals, the typical form of pressure consist
in appeals to fear or interest, but by remainders of the moral character of the actions
contemplated and the demands of morality.it is true that sometimes threat accompanied by
threats of physical punishment or by appeals to ordinary personal interest, but deviations from
the moral code meet with a number of hostile social reaction ranging from informal expression
of contempt to severance of social relations. However emphatic reminders of what the rules
demand appeals to conscience and emphasis on the operation of guilt and remorse are the
characteristic and most important kinds of pressure used for the support of social mortality. A
simple result of the acceptance of moral rules and standards is that it should be supported in
these ways as things which it is supremely and clearly important to maintain.8

7
V.D. Mahajan, jurisprudence & legal theory, p89(5th ed. 2019)
8
Ibid.

9|Page
Morals are concerned with the individual and lay down rules for the moulding of his character.
Law concentrates mainly on society and lays down rules concerning the relationship of
individuals with each other and with the state. Morals look to the intrinsic value of conduct.

10 | P a g e
RELATIONSHIP BETWEEN LAW AND MORAL
A study of various legal system makes it clear that law and morals have had a long union with
occasional desertion and judicial separation but have never been completely divorced.

Hart’s view: the view of H.LA Hart is that there are many different types of relationship between
law and morals and there is nothing profitably signed out for study as the relationship between.
Whereas it is important to distinguish some of many different things which may be meant by the
assertion or denial that law and moral are related. It cannot be disputed that the development of
law has been profoundly influenced at all times and places both by the conventional morality and
ideals of particular social groups and also by the form of enlightened moral criticism urged by
individual whose moral horizon has transcended the morality currently accepted. A legal system
must exhibit some specific conformity with morality or justice or must rest on a widely diffused
conviction that there is a moral obligation to obey it. Though this proposition may, in some
sense, true it does not follow from it that the criteria of legal validity of particular laws used in a
legal system must include tacitly, if not explicitly, a reference to morality or justice.9

Devlin: According to Devlin, the law should implement certain ethical codes in order to ensure
that the moral fabric of the society does not disintegrate. One of the reasons that eradicate social
order from societies is absolute freedom for people to do as they wish. Law is important in order
to protect the most important aspects of society. One of the causes of societal disintegration is
loose moral codes. It is important for a society to have a guiding moral code to ensure that
people do not cross certain boundaries that define what is toxic and what is beneficial to the
wellbeing of the society. Elimination of vices from a community is one of the most critical roles
of law. Prostitution and homosexuality are two main sources of moral decay in society.
Therefore, it is important for states to enact laws that address these issues.10

Devlin argued that it is important to establish laws that control morality because law not only
protects individuals but also the society. To Devlin, morality is a requisite for maintenance of
good laws that preserve the freedom of conscience, and reduce the probability of tyranny. In
addition, he argued that any behavior is capable of causing harm if not regulated by law. Hart
disagreed with Devlin’s argument that morality should be guided and determined by law. Hart
9
V.D. Mahajan, jurisprudence & legal theory, p90(5th ed. 2019)
10
Sixth Form Law: Hart-Devlin Debate. (n.d). Web. <https://www.sixthformlaw.info/>.

11 | P a g e
supported the committee’s recommendation of legalizing homosexuality and prostitution based
on the teachings of Mill. Hart argued that enforcing a moral code was unnecessary, undesirable,
and morally wrong. He argued that doing so would interfere with individual liberty and curtail
the development of moral principles.

According to Devlin, any type of behavior possesses the potential to cause harm to society by
destroying social cohesion. Prostitution and homosexuality are such behaviors or actions that
have the potential to destabilize a society. Therefore, it is imperative to implement moral laws
that serve to protect the society from the destructive and destabilizing aspects of prostitution and
homosexuality. It is important to explore the harm that homosexuality and prostitution pose to
both the individual and society in order to validate Devlin’s argument.

Fuller: Fuller is a naturalist, and he sees laws as a way of achieving social order by regulating
human behaviour through laws. He believes that our legal systems are derived from the norms of
justice which have a moral aspect.11 He argues that for a law to be valid, it must conform to a
certain moral function test.1 These are the eight desiderata set out by Fuller; (I) Rules (ii)
published (iii) prospective (iv) intelligible (v) not contradictory (vi) possible to comply with (vii)
reasonably stable through time (viii) followed by officials. 12 Fuller implores law makers to take
into consideration each of the above before determining whether a law is valid. Fuller goes
further to explain morality by categorising it in two; Morality of aspiration and morality of duty.
Morality of aspiration suggests a desired norm of human conduct that promotes his/her best
interest. Morality of duty describes the standards people follow to ensure smooth functioning of
society. Other forms of morality discussed by Fuller are “Internal morality of law” and “External
morality of law”. the former is concerned with procedure of law making while the latter focuses
more on substance rules of law which are applied in decision making.13 fuller rejects the
positivist approach to law and argues that society’s goals can be achieved by other means rather
than relying solely on law.

Upon examining both Hart and Fullers view on what the law is and how it relates to morality we
find that Fuller’s naturalist ideals offer the most solutions to the problems in the modern-day

11
Lon Fuller, The Morality of Law (Yale University Press c 1964) 33 – 91.
12
Ibid.
13
Ibid.

12 | P a g e
legal system. an example of this is where Hart says that we should identify what law is and what
it should be, this still leaves the question, ‘why do we obey the law?’ Is it because of the
sanctions behind it? or is it, because we accept it? As Hart believed. Would we refrain from
committing rape if there was no punishment? Or Perhaps law is obeyed because it is the most
convenient and just way of organizing our societies? All these questions will have a different
answer depending on one’s philosophical point of view. I on the other hand, believe that we may
also obey law because we believe that it is right or morally correct.

Ronald Dworkin: Dworkin is most famous for his critique of Hart's legal positivism; he sets forth
the fullest statement of his critique in his book Law's Empire. Dworkin's theory is 'interpretive':
the law is whatever follows from a constructive interpretation of the institutional history of the
legal system. Dworkin tried to show that Hart faces a dilemma. He has to choose between saying
that principles are part of the law and saying that they are not part of the law. Neither alternative
is palatable for Hart and there is no third option. We were quick with the first option, that
principles are not part of the law. Hart had been working on a written response to Dworkin that
was published in the postscript of the second edition of The Concept of Law. While Hart’s
remarks were incomplete, his comments all concerned the second option, so that’s where we
concentrated our attention.14

Dworkin expressed skepticism that this could be done. It is not as easy as saying “whatever is
passed by the legislature (following the rules, etc.) is law.” Nor would it do to have something
empty like “the principles that count as law are the ones that are accepted as counting as law.”
That says nothing about how to recognize the principles that belong to the law and distinguish
them from those that do not. Dworkin himself seems to have been inclined to say that the origins
of principles are irrelevant; it’s their substance, specifically their appropriateness, that matters.
For Hart, it’s the other way around: laws are determined by their origins. For Hart, a law is a rule
that comes from a source that can make laws, no matter how stupid the rule is. For Dworkin, a
principle has to make sense, no matter what its source is.15

Ex post facto legislation: One-point Dworkin made about the positivists is that if judges are
legislating, then the parties whose cases are being decided are being punished (or rewarded)
14
http://carneades.pomona.edu/2015-Law/07.DworkinHart.html.
15
Ibid.

13 | P a g e
based on the law that is made after they did the things that brought them to court. Seems pretty
bad. How can it be fair to require a person to comply with a law that doesn’t exist until later? At
the same time, however, I’m not sure Dworkin himself made a great leap forward with this
problem. According to him, judges settle questions about legal rights and duties by consulting an
indeterminate mass of principles whose interpretation and weight are matters of judgment. The
person trying to comply with the law can be just as much in the dark about how the case will be
decided as the one who faces a judge who makes the law up in deciding the case. So, one thing I
take away from this discussion is that we have an ideal that probably can’t be met. Our ideal is
that the law is settled in advance such that it is possible for someone who is sincerely trying to
comply with the law to do so. But there may be areas of the law where private citizens cannot
know if they are in compliance or not because what the law is too unsettled.

Pound on four stages: Dean roscoe pound has described four stages in the development of law
with respect to morality. (ⅰ)The first stage is a stage of in differentiated ethical custom, customs
of popular action, religion and law. Analytical jurists called it a pre-legal stage in the
development of law and law and morals were same thing. They were the two faces of the same
coin. (ⅱ) the second stage is that of strict law, codified or crystallised, which in time outstripped
by morality and has not sufficient power of growth to keep abreast. (ⅲ)the third stage is that of
infusion of morality into law reshaping it by morals.in that stage both the ideas of equity and
natural law are potential agencies of growth. (ⅳ) The final stage is that of conscious constructive
law-making, the maturity of law, in which morals and morality are for the law-maker and that
law alone is for the judge.16

LEGAL ENFORCEMENT OF MORAL

16
V.D. Mahajan, jurisprudence & legal theory, p91(5th ed. 2019)

14 | P a g e
A good deal of controversy has arisen in recent years as to whether the fact that conduct is, by
common standards, regarded as immoral, in itself justifies making that conduct punishable by
law. The view lord Devlin is that there is public morality which provides the cement of any
human society and law, especially criminal laws, must regard it as its primary function to
maintain this public morality. Whether in fact in any particular case the law should be brought
into play by specific criminal sanctions, must depend upon the state of public feeling .conduct
which arouses a widespread feeling of reprobation, a mixture of in toleration , indignation and
disgust , deserve to be supressed by legal coercion in the interest of the integrity of society the
conclusion of lord Devlin is that if vice is not suppressed , society could crumble . To quote him
“the suppression of vice is as much as the law’s business as the suppression of subversive
activities”.17
Prof. hart also accepts the need for law to enforce some morality. The real area of dispute is
where the line should be drawn. J.S. Mill drew it at harm to others. According to Hart some
shred morality is essential to society. if any society is to survive, if any legal is to function, then
must be rules prohibiting, for example murder. The rules essential for a particular society may
also be enforced. “For any society there is to be found ……a central core of rules or principles
which constitutes its pervasive and distinctive style of life.

17
V.D. Mahajan, jurisprudence & legal theory, p93(5th ed. 2019)

15 | P a g e
INFLUENCE OF MORALS ON LAW

Law and morals act and react upon and moulded each other. in the name of equity justice and
good conscience, morals have infiltrated into the fabric of law. Moral consideration plays an
important part while making law, interpreting law and exercising judicial discretion. Morals act
as restraint upon the power of legislature. no legislature will dare to make law which is opposed
to morals of society. all human conduct and social relation cannot be regulated and governed by
law alone and very many relations are left to be regulated by morals and law does not interfere
with them morals. Morals perfect the law. Paton writes: “In marriage so long love persists, there
is little need of law to rule the relation of husband and wife- but the solicitors come in through
the door as love flies out of window”18

The sociological approach is very much concerned with the ends to be pursued by the law. the
result is that morals have become a very important subject of study for good law-making. Morals
also exercise a great influence on international law. the brutalities committed during the world
wars have forced the people to turn back to morals and efforts are made to establish standards
and value which must be followed by nations. if law is to remain closer to life of the people, it
cannot ignore morals.19

CONCLUSION

Law and morals act and react upon and moulded each other. in the name of equity justice and
good conscience, morals have infiltrated into the fabric of law. Moral consideration plays an
important part while making law, interpreting law and exercising judicial discretion. Morals act
18
A textbook of jurisprudence, G.W Paton.
19
V.D. Mahajan, jurisprudence & legal theory, p94(5th ed. 2019)

16 | P a g e
as restraint upon the power of legislature. no legislature will dare to make law which is opposed
to morals of society. all human conduct and social relation cannot be regulated and governed by
law alone and very many relations are left to be regulated by morals and law does not interfere
with them morals.

It is contended by some writers that even if law and morals are distinguished, morality is in some
way an integral part of law or legal development. Morality is “secreted in the interstices” of the
legal system and to that extent is inseparable from it. This point view has been put forward in
various ways. It is said that law in action is not a mere system of rules but involves the use of
certain principles, such as that of equitable and the good. By the skilled application of these
principle to legal rules, the judicial process distils a moral content out of legal order, though it is
admitted that this does not permit the rules themselves to be rejected on the ground of their
mortality. Another approach confers upon the legal process an inherent power to reject immoral
rules as essentially non-legal. Even the positivist does not deny that many factor, including
morality, may and do concur in the development of a legal rule and where there is a gap or a
possible choice within the legal system, moral or other extra legal pressures may cause that gap
to be filled or the choice to be determined in one way rather than another. What the positivist
insist is that once the rule is laid down or determined, it does not cease to be law because it may
be said or show to be conflict with morality.

The sociological approach is very much concerned with the ends to be pursued by the law. the
result is that morals have become a very important subject of study for good law-making. Morals
also exercise a great influence on international law. the brutalities committed during the world
wars have forced the people to turn back to morals and efforts are made to establish standards
and value which must be followed by nations. if law is to remain closer to life of the people, it
cannot ignore morals

BIBLIOGRAPHY
 V.D Mahajan – “jurisprudence &legal theory”

 A textbook of jurisprudence, G.W Paton.

17 | P a g e
 Lon Fuller, The Morality of Law (Yale University Press c 1964)

 Sixth Form Law: Hart-Devlin Debate

 http://carneades.pomona.edu/2015-Law/07.DworkinHart.html.

 https://ivypanda.com/essays/the-hart-devlin-debate/

 https://www.lawteacher.net/free-law-essays/judicial-law/hart-and-fuller-debate-

9262.php#_ftn4

18 | P a g e