A Project on “Law & Morality.

Manipal University Jaipur

School of Law

Supervised by: Submitted by:

Dr. Shilpa Rao Rastogi Name- Aditya Bari

Registration No.-161401007

B.A. LL. B (Hons.)

Section- A
 CERTIFICATE

This is to certify that Mr. Aditya Bari, student of B.A, LL. B(Hons.) Fifth Semester, School of
law, Manipal University Jaipur, has completed the project work entitled “Law & Morality”
under my supervision and guidance.

It is further to certify that the candidate has made sincere efforts for completion of this
project.

Supervisor Name: ______________(Signature)

Dr. Shilpa Rao Rastogi

 ACKNOWLEDGEMENT

In performing our assignment, I had to take the help and guidance of some respected persons
who deserve our greatest gratitude. The completion of this assignment gives me much pleasure.
I would like to show our gratitude to Dr. Shilpa Rao Rastogi, Course Instructor, Manipal
University Jaipur for giving us good guideline for assignment throughout numerous
consultations. I would also like to expand our deepest gratitude to all those who have directly
and indirectly guided us in writing this assignment.

In addition, a thank you to the Professor who introduced us to the Methodology of work and
whose passion for the “underlying structures” had lasting effect. I also thank the Manipal
University Jaipur for the consent to include the copyrighted pictures as a part of our paper.

Many people, especially our classmates and team members itself have made valuable comment
suggestions on this proposal which gave us inspiration to improve our assignment. I thank all
the people for their help directly and indirectly to complete our assignment.

ADITYA BARI
 Table of Contents

CERTIFICATE ..................................................................................................................................... 2

ACKNOWLEDGEMENT .................................................................................................................... 3

DEFINITIONS ...................................................................................................................................... 5

RELATION BETWEEN LAW & MORALITY ................................................................................ 7

DIFFERENCE BETWEEN LAW & MORALITY ........................................................................... 8

SEPERATION OF LAW & MORALITY IN ANALYTICAL JURISPRUDENCE. ................... 10

CASES.................................................................................................................................................. 11

CONCLUSION ................................................................................................................................... 13

WEBLIOGRAPHY............................................................................................................................. 14
 DEFINITIONS

What is law ?
The principles and regulations established in a community by some authority and applicable to
its people, whether in the form of legislation or of custom and policies recognized and enforced
by judicial decision.

any written or positive rule or collection of rules prescribed under the authority of the state or
nation, as by the people in its constitution.Compare bylaw, statute law.

the controlling influence of such rules; the condition of society brought about by their
observance:

maintaining law and order.

What is morality ?
Ethics or morals is the study of what we ought to do; i.e. what is the right way to act and what
is the wrong.

Fundamental moral concepts such as right and wrong are necessarily universal. If they are
treated as relative and subjective, then they become inapplicable to the social sphere; and hence
to the whole area of human law. If what is wrong to me may legitimately be right to someone
else, then one may perhaps debate the opportuneness of this or that law, but not its justice.

Without an interior sense of a moral order, there can be little respect for the law; for this can
only come from feeling oneself bound from within to observe the law. Here we note that the
almost universal modern concept of law as a system of rules created by the state - which ensures
its application through a system of courts and a coercive power - leaves the law without any
interior appeal or authority, except insofar as one may recognize the need for some minimum
of common rules. It also exposes the individual to the tendency to regard the law as purely
external imposition to be evaded, if one can, whenever it is considered personally inconvenient.

The purpose of morality is to ensure the uprightness of individual conscience (the law cannot
force a conscience to be upright). Yet christian morality is not individualistic; it leads one into
community
What is jurisprudence?
The word jurisprudence derives from the Latin term juris prudentia, which means "the study,
knowledge, or science of law." In the United States jurisprudence commonly means the
philosophy of law. Legal philosophy has many aspects, but four of them are the most
common:

The first and the most prevalent form of jurisprudence seeks to analyze, explain, classify, and
criticize entire bodies of law. Law school textbooks and legal encyclopedias represent this
type of scholarship.

The second type of jurisprudence compares and contrasts law with other fields of knowledge
such as literature, economics, religion, and the social sciences.

The third type of jurisprudence seeks to reveal the historical, moral, and cultural basis of a
particular legal concept.

The fourth body of jurisprudence focuses on finding the answer to such abstract questions as
"What is law?" and "How do judges (properly) decide cases?"
 RELATION BETWEEN LAW & MORALITY

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. They influence
each other to a great extent. Laws, to be effective, must represent the moral ideas of the people.
But good laws sometimes serve to rouse the moral conscience of the people and create and
maintain such conditions as may encourage the growth of morality.

The precise areas of relationship between law and morality can be stated in the
following manner:

1) Law is related to morality in the setting forth of those virtues that are related to the common
good. This does not mean that positive human law should prohibit all vices nor command all
virtues: rather it prohibits only the grosser failings of mankind which threaten the very survival
of society and commands those virtues which can be ordained by human means to the common
good.

2) Law is related to morality by the moral obligation imposed, i.e., by the necessity of an act
in relation to a necessary end-since law as the command of practical reason necessarily implies
an obligation. Thus obligation flows from the essential notion of law as an effective dictate of
practical reason, i.e., a connection of some necessity between the act commanded and the end
for which that act is commanded. However, positive human laws' obligation is not in that same
manner as morality's obligation.

3) Law is related to morality inasmuch as law is subject to and cannot contradict moral
principles, i.e., natural moral law.

4) Law is related to morality in as much as both stem and are directed by the same source:
practical reason or prudence. A keener insight into this particular relationship can be
ascertained by determining the nature of politics; politics is a human work of art, i.e., a work
of experience and prudence-and as prudence, politics is intrinsically related to ethics.

5) Law is related to morality inasmuch as justice is a moral concept which is meaningless

outside the area of morality. Essentially, justice consists in the recation of equality.
 DIFFERENCE BETWEEN LAW & MORALITY

(1) There is a marked distinction between law and morality. The first point of difference is that
laws are enforced by the state whereas canons of morality are followed at the call of institution.
If one disobeys the commands of law or violates the laws, he is liable to be punished by the
state but if one fails to observe the scruples of morality, he is not liable to be awarded physical
punishment. The severest punishment that can be awarded to a person for not observing the
scruples of morality is his social boycott.

(2) Morality is concerned with both internal and external affairs of man whereas law is
concerned only with the external affairs of man. Hence, law punishes only those persons who
violate laws by their external actions. For example, law punishes a person only when he-
commits a theft or dacoity or murder or any other physical crime.

Law cannot punish a person for telling a lie or for abusing some-one. Telling lies, condemning
someone, showing disgrace to others, being ungrateful and many other internal actions of man
are sins but they are not crimes.

(3) There are many things which are not illegal according to law but are unacceptable to
morality. For example, telling lies, showing disgrace to others, feeling greedy, being ungrateful
and not helping the poor, are not against the spirit of law, Not only this, sometimes the adoption
of immoral policies by the state for the cause of common welfare is not illegal in the eyes of
laws. Machiavelli maintained that even the immoral practices are legal, if they are applied for
the benefit of the state.

(4) Similarly, there are many things which are illegal in the eyes of the state but are acceptable
to morality. For example, it is not a sin not to keep to the left or to drive the vehicle fast in the
market. The fact is that the canons of morality are concerned with the moral duties whereas the
laws of the state are concerned with the legal duties.

(5) Another point of distinction between law and morality is that laws are certain and universal
and they are universally applicable to all citizens whereas the canons of morality are quite
uncertain.
Not only this, many time’s different races have different canons of morality in a society. For
example, a large number of people think it immoral to eat meat and drink wine. But at the same
time, there are people in India who think it quite moral to eat meat and drink wine.

(6) The government should, at first, arouse the moral sentiment of the people and then enforce
the laws. The laws which are not based on the sentiment of morality are less effective and less
permanent.
 SEPERATION OF LAW & MORALITY IN ANALYTICAL
JURISPRUDENCE.

The notion of analytical jurisprudence (also called “positive law”) is merely one aspect of a
wide range of legal theories that are evident throughout legal history, and in the contemporary
legal system. Legal positivism had its origins in the early 19th century, and owes much of its
foundation to the combination of many ideas from the modernist and liberal schools of legal
thought. This allowed for a movement away from natural law theory, especially at a common
law level, and gave the opportunity to take a more scientific approach to the law ‘as it is’. This
approach was first taken by figures such as Jeremy Bentham and John Austin. However, the
positive view of the law struggled to adapt to the 20th century legal system, and it was HLA
Hart who redeveloped the concept of positive law in England in the 1960s.

Legal positivism holds the belief that the law should remain separate from morals and other
social factors (such as religion, etc), and thus the theory was that the law could have much more
general application. This brief will consider the ideas of the founders of the school of analytical
jurisprudence, and highlight the strict separation of law and morality that these theorists adopt
in their approach to analysing the law (thus supporting Austin’s claim). It will explore the
theories set out by Bentham, Austin and Hart, and consider them in the context of the modern
law, and determine their validity in the contemporary context.

Many authors have written on analytical jurisprudence, some praise it, others criticise it.
However, there is no denying that analytical jurisprudence has made some form of contribution
to the way some people interpret and apply the law. One author has defined analytical
jurisprudence as the following:

First, analytical jurisprudence was created on the assumption that there ought to be a sharp
separation between law and politics. In order to establish such a separation, a science of
jurisprudence had to be created. It was a system whose definitions, dichotomies and boundaries
were designed, above all, to produce one right answer. Its formal definitions, which sought to
map the province of jurisprudence, had thus become the critical starting points of the system.
The sharp, bright line distinctions between law and custom or law and morality were originally
crafted for the central purpose of creating a hermetically sealed intellectual system designed to
yield only one set of meanings, only one right answer.
 CASES

1. Baker v Hopkins1
[Law and morality - courts attitude to resucers - tort law]
DD, a firm of contractors who had been employed to clean out a well.
Fumes from a petrol engine 30 feet below ground level gave of dangerous fumes.
Employees went down the well, and were overcome by the fumes. C were the executors
of the estate of a doctor who attempted to rescue the employees, but in so doing was
himself overcome by the fumes. All three men died.
Held: D were liable for all the deaths including the doctor
It was a natural and probable consequence of the defendants' negligence towards the
employees that someone would attempt to rescue them; the defences of novus actus
interveniens and volenti non fit injuria could not be successfully relied upon against the
doctor's dependants.

2. Bolam v Friern Hospital2

[Law and morality - defendant doctor may not be liable provided he acted in accordance
with general practice]
D, doctor failed to give a muscle relaxant; Complainant suffered a fracture whilst he
was undergoing electro-convulsive therapy. Differences of practice.
Held: Not negligent if he had acted in accordance with practice
Complainant’s claim failed.

3. Dudley & Stephens, R v3

[Law and morality - the law knows no defence of necessity]
Three sailors and a cabin boy were shipwrecked and were adrift in an open boat 1600
miles from land. After they had been eight days without food, and six without water,
DD decided that their only chance of survival was to kill the cabin boy and eat him, and
this they did. Four days later they were picked up by a passing ship, and on returning
to England were convicted of murder.
Held: Necessity can never be a defence to murder. Their sentence of death was later
commuted to six months' imprisonment.
Guilty

1
[1959] CA
2
[1957] QBD
3
(1884) CCR
 4. F v West Berkshire Health Authority4
[Law and morality - sterilisation of mentally handicapped person - voluntary in-patient
at mental health hospital - inability of patient to consent - court's jurisdiction to give or
withhold consent to operation]
D, health authority decided to have C (36 yrs) sterilised, because of her mental capacity
Held: It was in her best interests to be sterilised.
Sterilisation allowed

5. Knuller v DPP5
[Law and morality - courts dictate morality]
D published a gay contact magazine thereby conspiring to corrupt public morals.
Held: In Shaw (1962) the House of Lords held that the common law crime of
"conspiracy to corrupt public morals” existed despite many commentators believing
that it did not exist; effectively the HoL created it.
Lord Reid had dissented in Shaw, and still believed it to be wrong, but it did not follow
that it should now be reconsidered.

6. Pretty v The United Kingdom

[Law and Morality - right to die - euthanasia]
Diane Pretty was terminally ill with Motor Neurone Disease. She wanted to obtain the
right to be able to request medical help to die at a time of her choosing. Particularly, to
be given a guarantee that her husband would not be prosecuted for assisting her suicide
in an active way.
Held: Permission refused.
The Director of Public Prosecutions did not have the power to give an undertaking that
he would not consent to prosecute the husband of a terminally-ill woman if he helped
his wife to commit suicide.
Mrs Pretty died on 11th May 2002 her case received worldwide coverage. She was
backed by the Voluntary Euthanasia Society (VES).

4
[1990] HL
5
[1973] HL
 CONCLUSION

Although there are specific areas of relationship between law and morality, it does not follow
that courts will consider moral elements in the application of the positive civil law. The-extent
of the weight of moral consideration in the application of the positive law will be contingent
upon many factors: particular weight is given to moral considerations in the expansion of legal
rights and in the interpretation of constitutions and statutes.

Thus, in terms of contents, morality is intrinsically related to law in specified areas and can be
a controlling factor in a specific fact situation.
 WEBLIOGRAPHY

1. http://www.cormacburke.or.ke/node/1108
2. https://en.oxforddictionaries.com/definition/law
3. https://www.law.cornell.edu/wex/jurisprudence
4. https://www.linkedin.com/pulse/specific-relationship-between-law-morality-
haridarshan-tripathi
5. https://sixthformlaw.info/02_cases/mod6/cases_law_morality.htm#Baker%20v%20H
opkins%20[1959]%20CA