Criticism of Law and Morality

The best description of natural law; according to one leading natural lawyer, is that it
provides a name for the point of intersection between law and morals. There is an
unquestionable tension between what is and what ought to be. Theories of natural
law attempt to resolve this. It is put simply, is that what naturally is, and ought to be.
If we are to understand the nature and impact of the natural law project, we must
recognize that it yields a different logic. Many dispute one of the central tenets of
natural law, the view that objectivity is possible in morals. It claims that moral
properties are indeed real in the sense that they are not merely illusory not simply
reducible to the subjective affective experiences of individuals as its detractors claim.
Morality is simply a matter of personal preference and subjective taste.
Lon E. Fuller (1902-78) is the best remember for his secular natural law position that
law has an inner morality. And that a legal system is the purposive enterprise of
subjecting human conduct to the governance of rules. We are concerned only with the
nature of Fullers claim that there is a necessary connection between law and morality.
Fuller relates the Moral tale of King Rex and the eight ways in which he failed to
make law. Fuller adopts a procedural natural law approach. The eight ways to make
law are, in Fullers theory reflected in his eight desiderata; eight kinds of legal
excellence forward which a system of rules may strive embodied in the inner morality
of law. Among the main criticism of this account of law is that it proposes what are, in
essence a set of procedural standards to which a legal system ought to confirm, John
Finnis also describes his book as introductory Natural law and Natural rights
constitute a major testament of classical natural law theory.1
Hobbes says, we are in a natural state of perpetual war of all, where no morality exists
and all live in constant fear.
According to Lock, preserved the natural rights to life, liberty and property and the
enjoyment of private rights. The pursuit of happiness, Locke derives natural right
from natural law.

Raymond W. Understanding Jurisprudence Page- 27, 28

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A valuable starting point is professor Harts important essay positivism and the
separation law and morals.
Bentham is the best known as utilitarian and law reformer. But he insisted on the
separation between the is and ought of law. Austin was equally emphatic in
maintaining this distinction, but his analysis is now generally regarded as much
narrower in scope and objective than Benthams. The modern view is certainly that
Austin was considerable more conservative politically than his mentor.2
According to Austin; Law is a general rule of conduct but that is not practicable in
every sphere of law. A law in the sense of the Act of the legislature may be particular
in the fullest sense of the world.
Law is a command and that command has to be communicated to the people by whom
it is meant to be obeyed or followed. This view of Austin is not tenable. Promulgation
is usually resorted to but it is not essential for the validity of a rule of law.
Law of command,
According to Austin, law is a command of the sovereign but all laws cannot be
expressed in terms of a command. The greater part of a legal system consists of laws
which neither command nor forbid things to be done. Laws giving citizens the right to
vote, laws conferring on leaseholders the right to buy, and the reversion laws are
concerning the sale of property and the making of wills. The term command suggests
the existence of a personal commander. This is especially so where sovereign is
divided as in federal states. Commands conjure up the picture of an order given by
one particular person.
Sanction,
Austins definition of law may be true of a monarchial police state, but it cannot be
applied to a modern democratic country whose machinery is employed for the service
of the people. The sanction behind law is not the force of the state. Sanction is not an
essential element of law. If we apply this fact to every kind of law, we are liable to

Raymond W. Understanding Jurisprudence Page- 54

arrive at absurd conclusion. It is true that there is such a thing as sanction in case of
criminal law but now such sanction is to be found in case of civil law.3
According to Bentham, he argues that commands are merely one of four methods by
which the sovereign enacts law; Benthams is concerned with the distinction between
Penal and civil laws. Every law has a penal and a civil part, even in the case of title to
property there is a penal element. He seeks to show is that laws which impose no
obligation or sanctions are not compete law. The concept of a command was
important for Bentham. Benthams views that all complete laws are imperative in
form.
Bentham a law contains two parts the directive part which announces the conduct to
be done and the ineitative part which predicts the sanction. He recognizes that a
sanction may be not merely coercive but may also be in the form of a reward.
Benthams sovereignty refers to a state of political society. He alludes only to the
positive condition. He recognizes not only that sovereignty may be limited or divided,
but that limitation on the sovereign power is actually a correlative of limited
obedience to the legislators command. He also suggested that where the people
decided not to obey a particular command this constitutes a limitation of sovereignty.
Bentham explains the continuity of legal system where the sovereign dies or the
sovereign body is in recess.
Bentham is also willing to concede that a sovereigns commands would constitute law
even in the absence of sanctions in the Austinian sense. He discorded this factor, and
considered rewards as praemiary sanction because rewared could also be induced
compliance.
Distinction between law and morality
There is a distinction between law and morality, Vinogradoff writes, Law is clearly
distinguishable from morality. The object of law is the submission of the individual
to the will of organized society while the tendency of morality is to subject the
individual to the dicates of his conscience. According to Pollock, Though much
ground is common to both, the subject matter of law and ethics is not the same. The
3

V.D. Mahajan. Jurisprudence and legal theory, 5th Edition, p-35

field of legal rules of conduct does not coincide with that of moral rules and is not
included in it and the purposes for which they exist are different. Morals or ethics is a
study of the supreme good, law lays down what is convenient for that time and place,
ethics concentrates on the individual rather than society.
Bentham says, In a word, law has just the same center as morals but it has by no
means the same circumference.
Professor, H.L.A. Hart writes that the vague sense that the difference between law an
morals is connected with contrast between the internality of the one and the
externality of the other.4
A study of the various legal systems makes it clear that law and morals have had a
long union with occasional desertion and judicial separation but have never been
completely divorced. Positive law and just law correspond to positive morality and
rationally grounded ethics. It is true that the development of law, at all-time s and
places has in fact been profoundly influenced both by conventional morality and ideas
of particular social groups and also by the forms of enlightened moral criticism of
these people whose moral horizon has transcended the morality currently accepted.

References:
Raymond, W. Understanding Jurisprudence
V.D. Mahajan. Jurisprudence and legal theory, 5th Edition

V.D. Mahajan, Jurisprudence and legal theory, 5th Edition page98-99

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