CHANAKYA NATIONAL LAW UNIVERSITY

PROJECT REPORTS FIRST SEMESTER 2008

POLITICAL SCIENCE 1
ON THE TOPIC LAW AND MORALITY

GUIDANCE AND INSTRUCTIONS BY :

MR. S. P. SINGH
FACULTY FOR POLITICAL SCIENCE
SUBMITTED BY:
TULIKA SINGH
ROLL NO. 278

Acknowledgement:
This is to state that I, (TULIKA SINGH, ROLL-278) completed my first semester project work
of POLITICAL SCIENCE on the topic LAW AND MORALITY. This project would have not
come to and end successfully without the help of many distinguished and undistinguished
personalities. I sincerely acknowledge the help rendered to me by our Faculty for the Political
Science, Mr. S. P. Singh. He has helped me a lot whenever I needed any sort of assistance and
guidance related to the topic. I acknowledge the sincere help of our library staffs and our net
centre-in-charge, who by rendering me help in locating appropriate resources to collect materials.
It is a good platform to recognize the help and guidance furnished to me by many persons in this
regard; I heartily acknowledge their help and support rendered to me. Without the help of the
above mentioned personalities and many unrecognized people this project would have never
been completed.

TULIKA SINGH

Table of Contents:
Research methodology
Introduction
Structuring
Analysis
* Law and Morality A Relation
* Law and its Forms
* Law Responsible for the Enforcement of
Religion and
Morality
* Even if some morality is outside the scope
of Law,
could Law's domain be a
subset of the Moral?
* Ideas of Lord Delvin
Cases and Illustrations
Conclusion
Reviews of The Morality of Law
Bibliography

Research Methodology:
The topic Law and Morality is a very vast topic. My observations and conclusions are based
upon the secondary materials. The methodology adopted by me to draw conclusion about the
topic is basically depended upon non-doctrinal research. I took the help of various research
papers having focus upon the study of relation between law and morality. I also took the help of
text books, novels, magazines, public opinion but to a very limited scope which was basically a
feedback from my friends and the most unexhaustive resource that is the internet. The books I
referred to were from the library of Chanakya National Law University.

Introduction
Law is defined as body of rules binding on the members of a community, either by statute or by
consent. Morality from the Greek "mos, more," meaning "customs and habits" is defined as that
which concerns the distinction between right and wrong in relations to actions, conditions and
character, or as that which is concerned with vice and virtue.
Morality is based on autonomy, which comes from within, the conscience and the character.
Therefore Institutional Law, which comes from outside, is often contrasted with Moral Law.
Law and morality are too vague to understand. It must be added here that the
notions of law and justice can't be captured and presented before us within a
few sentences. These notions are too vast that even words are not sufficient to
define them. Many jurists from the ancient Greek period to the modern and
even the post-modern era have attempted numerously to define these
concepts, but have failed. One of the reasons may be that the roots of these
concepts lie somewhere within the human psyche, which is extremely random
and versatile. Well it is required to describe the tenets of the two main schools
of law.
When compared with morality, it seems to be assumed that everyone knows what the second term of
the comparison embraces. In the present case, it seems to me, the legal mind generally exhausts itself
in thinking about law and is content to leave unexamined the thing to which law is being related and
from which it is being distinguished.

Structuring
Legal Positivism:The start of the nineteenth century may be regarded as the beginning of the
positivist movement. The term positivism has many meanings, which are tabulated
by Professor H.L.A. Hart as follows:
1. Laws are commands. This meaning is associated with the two founders of British
Positivism, Bentham and his disciple John Austin,
2. The analysis of legal concepts is:
* worth pursuing
* distinct from sociological and historical inquiries,
* distinct from critical evaluation,
3. Decisions can be deduced logically from the predetermined rules without
recourse to social aims, policy and morality,
4. Moral judgments cannot be established or defended by rational argument,
evidence or proof,
5. The law as it is actually laid down, positum, has to be kept separate from the
law that ought to be.
The positive law school has its main pillars as, Jeremy Bentham, John Austin, Prof.
H.L.A. Hart and Kelson. Actually positivism has grown out of the ashes of
renascence in Europe. It is hence a liberal thought or a liberal ideology whose main
aim is to bring positive reforms in the society through the instrument of state and
not through the clergy. What positivism represents is the intellectual reaction
against naturalism and a love of order and precision.
After having a brief idea of legal positivism, we should move to the Natural Law
school.

Natural Law School:The term "natural law". like positivism, has been variously applied by different
people at different times.
1. Ideas which guide legal development and administration.
2. A basic moral quality in law which prevents a total separation of the "is" from the
"ought".
3. The method of discovering perfect law.
4. The content of perfect law deducible by reason.
5. The conditions sine quibus non for the existence of law.

Analysis
Law and Morality A Relation: Natural law school dominated till the
nineteenth century, beginning from the ancient Greek period. Natural law school
discussed what law is etc., but never discussed law as an empirical formula, and
never made strict separation between what law is and what law ought to be.
Natural law thinkers while talking of law talk about law made by man's mind
consciously, as opposed to law made as a result of morality lacking conscious
element. Natural law thinking is one form or other is pervasive and is
encountered in various contexts. Values, for instance, as pointed out, play an
indispensable part in the development and day to day administration of law. In a
different sphere natural law theory has tried to meet the paramount needs of
successive ages through history, and an account has been given of the ways in
which it supported power or freedom from power according to the social need of
the time. Further natural law school offers an indirect help with two
contemporary problems, namely, the abuse of power and the abuse of liberty. 1

See the note to page 106 of Hildreths translation as reprinted in the International Library of Psychology,
Philosophy and Scientific Method (1931).

Positivism on the other hand, by seeking to insulate legal theory from such
considerations refuses to give battle where battle is needed perhaps wisely,
perhaps to its own discredit, depending on the point of view. The Natural law
thinkers have always considered the principles of morality as higher law and
they look at man made law contempt and ridicule. Law and morality have
always been at loggerheads with each other. The positivists led by Bentham and
Austin deliberately keep justice and morality out of the purview of legal system. 2
Their formalistic attitude is concerned with law as it is and not law as it ought to
be. They emphasize law from the point of source and implementation. So, the
natural law system depends upon the standards and yardsticks of morality to
formulate any law, whereas the positivist system of law depends upon the
conscious and deliberate attempt of law making.
Now it is time to go a little further deep in the project. We are constantly talking
about law and morality, so let us know the meaning of these two concepts. Law
is continuously evolving norm or rather we should say that it is a part of a
normative system whose work is to regulate certain norms in society. It is
dynamic and is never at any point of time static. Law has to change from time
to time as according to the ever changing demands of society. Law doesn't exist
for its own state. It has to achieve certain objectives, which may be short term
or long term. Law aims to create an order in society (in all units of society). Law
tries to create a working environment which is equally just to all sections of
society. On the other hand, there is the vague concept of morality which is a
sought of norm or a part of normative system. Morals are actually certain
yardstick standards in our society which work as prescriptions to human
behavior. The starting of preaching of morals start from the very basic unit of
our society i.e. family.3 As in a Hindu family, young people touch the feet of
elders to wish them. There is no logic behind these morals but still these morals
do prevail in our society. This is fully ones own private practice in which nowhere
law has to intervene. A morality can be one which throws a negative impact on
2
3

Outlines of the History of Ethics (1949), p. 129

Summa Contra Gentiles, III, ch. II.

society and the other which can benefit the society. 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.
Law has got a coercive backing which works through institutions. So, idea of
sanction, that? one will be punished by god? as is being propagated by religion
and the so called contractors of morality from years, has become very loose.
That is the reason, why religion and morality has become loose and ineffective.
So, constitutionalism has taken a front foot. I prove this point of mine by the
following example of our contemporary society. Today in our present society,
morality and religion are facing challenges put forward by technology, fast
urban

life,

and

secularism,

equality

before

law,

democracy,

and

constitutionalism.4
Since today people are educated in a liberal atmosphere, we are able to think
on our own, we know the difference between right and wrong, truth and false.
So, as in earlier society it was possible to create an easy fear factor in the minds
of people on the name of god. This clash is bound to take place as people are
now not dominated by anybodies whims and fancies or any religious or moral
sanctions, but they are capable of taking their own free decisions. When one
tries to analyze the distinction between law and morality, one feels vaguely that
somehow law is connected with reason and conscience. Therefore law has the
characteristic of binding whereas morality has the characteristic of being bound.
The great jurist asserts that force is necessary to control human behaviour
4

The Common Sense of Political Economy, ed. Robbins (1933), pp. 156, 179 80.

because humanity as a whole is not governed by reason. If every one thinks

reasonably and acts rationally there is no need of binding one's behaviour. But
the experiences in history do not provide clear evidence of such rational
behaviour and so the idea of law has developed on the assumption that it is
necessary to compel the behaviour of individuals in a particular direction to
achieve certain specific ends. Justice and conscience seem to be personal and
individualistic. Hence there can not be system attached within any order 5.
Therefore one recognizes, at any point in the history of any social organization,
a legal system but one fails to locate such a system of justice or morality.
Most probably, because justice and conscienceless are experiences and
intuitions of the mind. We can not think of an external system to regulate the
activities of the mind. On the contrary, human behaviour, in its rudimentary
nature is physical and superficial. And so a legal system can find a methodology
of directing it or guiding it or even governing it. therefore a legal system having
rules and regulations with regard to trade, commerce, finance and employment
will be greatly successful because the writer thinks, there are the areas in which
human behaviour is physically; desirable. In these areas an external force, law is
such an external force, a system in more comprehensively physical. Moreover
the external element of deciding, adjudication, administration or even policing is
possible. On he other hand, the definition of morality or the concept of morality
changes from person to person.6 May be what is morality for me, that is not
moral for you. For e.g. the viewing of porn sites in the scenario of the society
existing in Indian subcontinent is not considered to be a moral act, but the
viewing of the same porn site is considered to be a legible and conveniently
acceptable in European and American societies.7
Law and its Forms: 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,
5

The Logic of Liberty (1951); Personal Knowledge (1958).

Relevant references will be found in my article in 71 Harvard Law Review 650 (1958).
7
See the note in the Yale Law Journal cited in n. 12, supra.
6

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? The answer is that, the legal system is distinct from religion and
morality in the? Form? And not in the content.8
Law is influenced from both religion and morality and hence their takes place a
sought of interaction between the legal system and the moral and religious
faculty of our society. In a traditional society laws have never had a very
dominating character, but religion and morality had always had a very
predominant role.
But in a modern society life changes very fast, hence morality and religion are
under a great pressure. Hence, law is the only alternative to human
development. In a multi religious, liberal and multi communitarian society, law
can only work in a impartial and efficient manner. 9 The greatest examples are
the world's biggest democracies. Being more specific and illustrative, I would
like to quote the example of India, U.S.A., England, and France etc. which have
successfully established a deliberate and conscious mode of law making process
through constitutionalism and this is done out of an age old monarchial and
religious morality10. In Russia, before the 1917 Bolshevik Revolution, the
morality among general masses was that the Czar is having divine powers to
rule over them. Laws were used to enforce such moral standards, but after long
period of exploitation mass revolution broke up in 1917 and finally the negative
effects of morality were overthrown and a constitutional setup was established.
The same happened during French revolution. In India, in the ancient Vedic
period, the common morality was that society was unequal and hence caste
system and untouchability grew. This moral standard was given the institutional

The Road to Serfdom (1944), p. 78.

344 U.S. 174 (1952).
10
Perelman and Olbrechts Tyteca, La Nouvelle Rhetorique Traite de l Argumentation (1958), pp. 262 76.
9

shape of law. But, after independence in 1947 we have stopped the legal
enforcement of such illegitimate morals.
Now a question arises that, is law responsible for the enforcement of
religion and morality?
Pornography,

prostitution,

homosexuality

etc.

are

areas

of

ones

own

consciousness and hence it is an area of conflict which is still continuing. So,

does law has got the right to intervene with religious and moral feelings among
people? For example, there is a moral notion in our Indian society that love
marriages or inter caste marriages are not feasible enough and hence should
not take place. Consider the claim that homosexuality is immoral. I strongly
disagree. Now what In a contest between a majority of state legislators and me
and those who agree with me, what privileges the legislature's judgment of
morality. In what way are they experts how being elected to the legislature
qualifies them to make these judgments. Do they hold hearings on the morality
of homosexuality and offer reasons for their conclusions.

11

Or do they just press

a button and register their vote. Most importantly, how can we assess the
merits of their claim? If we cannot, then in reality they can prohibit whatever
they want (and for whatever reason they want). No matter how objective
morality may be, any such doctrine of constitutional law is recipe for tyranny.
Take the issue of living relationships, which carries a moral ban on it. I don't
understand that if two major individuals with their exercise of free consent
decide to live together, where the question of infringement of any rational
standards arises. This shows that the moral standards are never rational by
effect.12
Now I ask the question that, should a law be made to enforce such moral
standards. Is such a law not repugnant with the constitutional principles of
liberty and freedom?
11
12

Boyd, The Papers of Thomas Jefferson, II, 545.

The Federalist, No. 44.

The legal positivists like, Bentham, Austin, Kelson have always said that law
must never be used as an instrument of enforcement of any moral standards.
Therefore, as one cannot see the mind and conscience, elements of morality
become weak and not determinable. But law is convenient, the present writer
asserts again that it is only convenient; it has withstood the test of time. At any
particular time, for any situation, law becomes a technique to establish a certain
expected social behaviour. Morals may be for enlightenment and would facilitate
individual peruses.13 Therefore it is thought and envisaged by the present writer,
as compulsions and aspirations influence life, a legal system should consist of
principles of convenience and feasibility whereas morality should be left to
individual freedom and practice. Legal enforcement of these moralities which
causes negative impact in the growth of our society must never be determined.
Recently a pastor informed his congregation that Christians can no longer seek
to impose their moral values on a society which does not accept Christianity.
The second part of the statement, at least, is quite wrong. While Church
membership and attendance has sharply decreased, the Roy Morgan Study of
the Values of the Australian People demonstrates that 80% believe in God.
Should Christians seek to impose their moral values on law and society. There
are some who are forcibly and aggressively arguing that Christian values must
be expelled from law, society and politics. Gareth Evans (now Senator Evans) is
reported in The Sydney Morning Herald, May 7th, 1976, as stating at a
convention of the South Australian Council for Civil Liberties that children
wanted a right to sexual freedom and education and "protection from the
influence of Christianity.14
The same article referred to Mr. Richard Neville (of Oz fame) as stating that
"promiscuity is one beneficial way of breaking up the family structure, which has
led children to become the property of their parents. Law cannot be an
instrument of expression of moral standards, rather law has to be independent
13
14

The Nature and Sources of the Law (2nd ed. 1921), pp. 172-73.
Nichomachean Ethics, Book V, 1137a.

of all sought of moral dogmas except certain areas in which law is dominated by
morality. e.g. Legal areas like the business laws, cyber laws, tax laws, company
laws, trade laws, etc are exclusively a legal treatise and morality has got
nothing to do with that of law in such areas.15 Take the historical example of SITA
whose fundamental and moral instinct has now changed it into PITA.
But on the other hand we can never deny that a major content of law derives its
content from that of morality. Like that criminal law is a product of moral
notions. 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. The positive thinkers have thought in a narrow interpretation
of law because they overlooked religious and moral values.
The actual conclusive situation is that religion, morality or law all have the work
of controlling the behaviour of individuals of our society, hence we must not
exclude the importance of morality in our society. In the case of International
Humanitarian Laws, certain moral standards are also recognized as a part of
law. So, the absolute separation of law and morality is not possible in these
areas where morality produces a positive effect in society which is prospective
in nature.
There seems to be quite a strong connection between law and morality.
Although people sometimes say "you shouldn't legislate morality", they
presumably don't really mean this - why would we outlaw rape and murder if
they weren't wrong? Instead, I suppose they mean that people shouldn't impose
their personal moral views (especially regarding sexuality) upon others. I would
agree with that sentiment, though my reason is precisely because I think
legislation should be morally informed, and the "moral views" in question are
entirely misled.16

15
16

Hart, The Concept of Law (1961), viii.

Law and Social Change (1951), p. 281.

As a quick aside: it is unfortunate that the word "morality" has become

associated with conservative values, because the obvious invalidity of those
values to many people tarnishes their attitude towards morality as a whole. And
that

is

damn

shame.

When

conservative

groups

advocate

bigotry

masquerading as "family values", we need to recognise the injustice of this, and

instead stand up for what is right. But I digress - this isn't intended as a post
about how liberals need to reclaim the moral high ground.
So we accept that there is a connection between law and morality, but what sort
of connection is it. Their domains are clearly not entirely identical - for
example, it may be wrong to lie to your parents, but it certainly is no business of
the law.17 Perhaps the best way to explain this is to acknowledge that the law is
an extremely blunt tool, and so will be of no help when dealing with minor or
subtle moral issues.
But even if some morality is outside the scope of Law, could Law's
domain be a subset of the Moral? That is, should we only ever outlaw
immoral acts, and never morally permissible ones?
I would like to say 'yes', as it does seem like a good principle. But I can't,
because it contradicts my position on some other issues. That is, I think morality
is purely 'other-regarding' in nature, and merely harming yourself (e.g. smoking
in private) is not immoral. On the other hand, I previously suggested that state
paternalism could be acceptable.
To approach this topic from a slightly different angle now, the intriguing
suggestion that we understand law and morality in terms of belief-desire
psychological theory. That theory claims that any human action can be
explained solely in terms of the beliefs and desires of the agent. For example, if
I turn on a heater, this may be because I desire to be warm, and I believe that
turning on the heater will achieve this end. 18 To apply this to our current topic,
17
18

Hoebel, The Law of Primitive Man (1954), p. 28.

Dicey, The Law of the Constitution (10th ed., 1960), Intro., xl.

consider how society can influence the actions of its members. According to
belief-desire psychology, there are two broad options: change someone's
beliefs, or change their desires.
Morality, by this understanding, corresponds to the latter option. That is,
morality is a system of socialisation whereby society instills in its members the
desire certain ways. (I discuss some of the implications of this view in more
detail here.)19
The other method of influence is to alter people's beliefs about how best to fulfill
their desires. This is where Law comes in. Its role (according to this
interpretation) is to serve as a deterrent for those who, for whatever reason, fail
to be bound by morality. It achieves this through the threat of punishment, i.e.
by instilling in citizens the belief that breaking the law is not in their own best
interests - they could get caught and sent to jail, which would surely thwart
many of their other desires.20
So by this view, law and morality are just two sides of the same coin namely, that of socialisation. Morality seeks to influence our behaviour by way
of our desires, whereas law is the 'back-up' option, and targets our beliefs.
This is true in the United States as well, and not only in how our legally
mandated school systems and our criminal laws contribute to the shaping,
including the moral training, of citizens.

21

Yet the typical opinions in a

contemporary liberal democracy are likely to be:

that morality cannot be legislated; and that even if morality could be legislated,
it should not be...that to do so is somehow improper, even tyrannical, either
because there is no morality objective enough to justify legal enforcement or
because one's autonomy and individuality would be violated by attempts to
19

Reichenbach, The Rise of Scientific Philosophy (1951), p. 231.

Science and Common Sense (1951)
21
The Logic of Liberty (1951); Personal Knowledge (1958).
20

legislate morality or perhaps even because one really has no autonomy that can
respond to any external directive.
Such concerns are not evident in the Ethics: law is needed both to help
habituate citizens to virtuous actions and to help maintain the salutary habits
they acquire. These needs can be recognized even by those who are aware that
the virtues generally fostered by law are not the highest. The opinions one may
have about the good, the true, and the beautiful are a secondary concern of
most laws. Still, it is well to keep in mind Aristotle's counsel that one who is "to
listen intelligently to lectures about what is noble and just must have been
brought up in good habits." For proper habituation, laws can be most useful, if
not indispensable. Although intellectuals of liberal democratic sympathies may
not believe that morality depends on law, it is almost impossible for any regime
that takes itself, and is to be taken, seriously not to shape its citizens with
respect to morality. To deny that legislation of morality can or should take place
does not eliminate such legislation; it merely conceals it, perhaps distorts it, and
otherwise confuses and misleads rulers and ruled alike. (Here, as in physics,
much that Aristotle noticed and relied upon is tacitly relied upon by us as well,
but relied upon haphazardly because it is not properly noticed.)22
It would be useful, therefore, to indicate how pervasive Aristotle understands
the law to be with respect to morality in a community. When we see what law
can mean, and how it works, we may better appreciate what the law does in the
service of morality, even in such a liberal democracy as ours. To speak of the
influence of the law is, we shall see, to speak of the many ways that the
community forms the citizen and guides the human being. For us, however, the
term law does tend to be limited to what "government" does, to the statutes
and decrees that governments issue. We have noticed the most conspicuous
way, drawn upon at the end of the Ethics, in which morality is dependent on law.
It should be added here that not only is morality somewhat dependent on law,
22

Oxford University Press, 1961.

but also that the law itself is to a considerable extent dependent on morality.

23

properly trained, morally alert citizen-body tends to be appalled by the

lawbreaker. But does not this response (which can help keep many would-be
lawbreakers in line) rest, in turn, upon the presumption that the law is likely to
be, and in fact usually appears to be, itself moral and in the service of the
common good. There is a critical reciprocity between law and morality.
Reciprocity, we recall from the Ethics, can be vital to justice as a particular
virtue. The exercise of most virtues requires a stable community, one in which
one's body and life as well as property are fairly secure...and, of course, the law
is essential here. To become or to remain a civilized human being usually
requires a sound community...that is, one in which the law plays a considerable
part. Is there not an intimate relation, at home and abroad, between justice and
peace To recognize this is not to deny that friendship also seems to hold
communities together nor that legislators may care more for it than for justice. 24
Even so, is not proper habituation needed for reliable friendships, as well as for
justice. Who but the legislator, who must always be distinguished from the
tyrant, can insure such habituation?
If law is not based on morality, on what it can be based - Christian morality,
derived from the Ten Commandments, underlies the common law. Criminal law
is based on the Ten Commandments, which also underlie the law of contract and
the law of civil wrongs. The common law inherited by the British Colonies on the
Australian continent and by the Commonwealth established in 1901, was
developed over many centuries by British judges, who reacted to particular
human

situations

on

the

basis

of

Christian values. In an essay entitled "morals and the Criminal Law.25

Lord Devlin wrote:"Society means a community of ideas; without shared ideas on politics morals
23

Boorstin, The Lost World of Thomas Jefferson (1948), pp. 45 47.

See the New York Times for Dec. 7, 1962, pp. 1 and 15, and Dec. 8, 1962,p. 13.
25
78 Harvard Law Review 1281-96 (1965).
24

and ethics, no society can exist. Each one of us has ideas about what is good
and what is evil; they cannot be kept private from the society in which we live. If
men and women try to create a society in which there is no fundamental
agreement about good and evil they will fail; if, having based it on common
agreement, the agreement goes, the society will disintegrate.
"For society is not something that is kept together physically; it is held by the
invisible bonds of common thought. If the bonds were too far relaxed. The
members would drift apart. A common morality is part of the bondage. The
bondage is part of the price of society; and mankind, which needs society, must
pay its price ".

Cases and Illustrations:

Airedale NHS Trust v Bland [1993] HL
[Law and morality - medical treatment - whether withdrawal of artificial
feeding lawful - patient in persistent vegetative state - maintenance of life by
artificial feeding]
Tony Bland seriously injured in the Hillsborough disaster, was being kept alive only by extensive
medical care (not a life-support machine). He had survived for three years in persistent vegetative
state (PVS). He continued to breathe normally, but was kept alive only by being fed through
tubes. He had no chance of recovery; his doctors (with the support of his family) sought a
declaration from the court that it would be lawful for them to discontinue treatment so that he
might die peacefully.

Held: Treatment could properly be withdrawn in such circumstances, because the best interests
of the patient did not involve him being kept alive at all costs.

In this case feeding him was treatment and that treatment would not cure him and therefore was
not in his best interests.
It was lawful for D's doctors to stop feeding him artificially.
See also Frenchay Healthcare National Health Service Trust v S [1994]. Similar issues can arise
in respect of the very elderly or in respect of babies born with very severe mental or physical
handicaps, especially where major (and possibly repeated) surgery would be needed to keep them
alive see Re J [1991].

It was lawful for D's doctors to stop feeding him artificially. The court had no
option but to make a decision one way or the other.
Central London Property v High Trees House [1956] KBD Denning J
[Law and morality - the courts enforce a promise]
D leased a block of flats in London from C in 1937. When war broke out, many flats were left
empty as people were evacuated to escape bombings. C agreed to reduce the rent by half if D
stayed. D paid the reduced rent until the end of the war, and C then claimed for the "arrears".
Held: Denning J "discovered" the equitable doctrine of promissory estoppel, and said that
although C were once again entitled to the rent originally agreed after the war ended, they could
not go back on their promise to accept a reduced rent for the earlier years.
When a party to a contract makes a promise to the other, which he knows will be acted on, that
he will not enforce his strict legal rights; the equitable principle of promissory estoppel makes
that promise binding on him until such time as he gives reasonable notice of his intention to
resume those rights.
Denning J (obiter dicta) said that had Central London sued for the arrears for the years 1940-45,
it would have failed. It would have been estopped from going back on its promise [as set out in
the 1940 agreement] to accept a reduction in rental, even though that promise had not been

supported by any consideration from High Trees because to hold otherwise would have been
unjust

Frenchay NHS Trust v S [1993] CA

[Law and morality - medical treatment - best interests of patient to allow to
die - consent of court to be obtained first]
D, the hospital where S aged 24 was a patient. S was in a coma (PVS) following a drug
overdose. Feeding tube became detached consultant recommended to do nothing.
Held: There was no reason to question the conclusion of the consultant, who considered it in the
best interest of the patient not to operate to replace the tube.

S allowed to die.
Gillick v West Norfolk and Wisbech Area Health Authority [1986] HL
[Law and morality - whether doctor may give advice and treatment on
contraception to girl under 16 without parental consent]
Mrs Gillick a Roman Catholic mother of five daughters sought a declaration that a doctor would
be acting unlawfully if he gave contraceptive treatment for any of her daughters without the
mother's consent.
It was argued on the one hand that teenage pregnancies would increase if the courts ruled that
parental consent was necessary, on the other hand that the judges would be encouraging underage sex if they did not.
Held: A doctor could prescribe contraceptives to a girl under 16 to prevent damage to her health,
even though he knew it would assist a man to have unlawful sexual intercourse.
By a majority of three to two. A child under 16 who can fully understand the implications of the
proposed treatment (a "Gillick competent" child) can give her own consent to medical treatment.

(Since Parliament had not legislated, the courts had to make a decision one way or the other.)

Mrs. Gillick lost

Conclusion:
There can never a hard jacket or a universal formula which could determine that
should law be used to enforce morality. It can only be concluded that the level of
enforcement of moral standards depends upon case to case. In the cases where
morality shadows a good and beneficial effect on the society, there if required,
law could be used to enforce that positive morality. For example, in the case of
International Humanitarian Laws, certain moral standards are also recognized as
a part of law or in another illustration that, all religious and moral norms say not
to kill or not to steel, and this moral is enforced through law. On the other hand,
that morality which produces any harmful effect in any form in the society, there
law should never be used to enforce such morality.
Let's summarize the relationship between morality and law.

(1) The existence of unjust laws (such as those enforcing slavery) proves that morality and law are
not identical and do not coincide.
(2) The existence of laws that serve to defend basic values--such as laws against murder, rape,
malicious defamation of character, fraud, bribery, etc. --prove that the two can work together.
(3) Laws can state what overt offenses count as wrong and therefore punishable. Although law courts
do not always ignore a person's intention or state of mind, the law cannot normally govern, at least
not in a direct way, what is in your heart (your desires). Because often morality passes judgment on a
person's intentions and character, it has a different scope than the law.
(4) Laws govern conduct at least partly through fear of punishment. Morality, when it is internalized,
when it has become habit-like or second nature, governs conduct without compulsion. The virtuous
person does the appropriate thing because it is the fine or noble thing to do.
(5) Morality can influence the law in the sense that it can provide the reason for making whole
groups of immoral actions illegal.

Bibliography:
Sites:
www.google.com
www.yahoo.com
www.wikipedia.org
www.jurisprudence.net
www.politicalscience/lawandmorals.html

Journals and Statutes:

Reviews of the Morality of Law (listed in the next page)

Books:
The Morality of Law Lon L. Fuller (Revised Edition)
The Road to Serfdom
The Nature and Sources of Law

Reviews of the Morality of Law

Andrews, 89 Library Journal 3012(1964)
Bartholomew, 58 American Political Science Review 984(1964)
Baum, 10 St. Louis University law Journal 435 41(1961)
Bedau, The Nation (April 12, 1965), pp. 398 401
Berns, The National Review (August 11, 1964), pp. 690 91
Binkley, 1965 Duke Law Journal 668 70 (1965)
Blackshield, Reading Guide of the University of Virginia Law School, (Feb. 1965), pp. 11 16
Boye, Revenue Historique de Droit Francais et Etranger (July Sept. 1965), pp. 504 05.
Brady, 43 Texas Law Review 258 59 (1964)
Campbell, 28 Modern Law Review 370 73(1965)
Dias, 1965 Cambridge Law Journal 157 59 (1965)

Golding, 76 Ethics 225 28 (1966)

Hart, 78 Harvard Law Review 1281 96 (1965)
Johnson, 33 Tennessee Law Review 563 65 (1966)
Mc Dowell, 44 Boston University Law Review 587 90 (1964)
Summers, 18 Journal of Legal Education 1 27 (1965)
Tunc, 3 Review Internationale de Droit Compare 519 21 (1965)
Wasserstrom, 19 Rutgers Law Review 581 86.