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What is the place of
Morality in Rule of Law?
(Jurisprudence)
Introduction
Natural law (jus naturale) is a philosophy that certain rights are inherent
by virtue of human nature endowed by nature, God, or a transcendent
source, and can be understood universally through human reason.
Historically, natural law refers to the use of reason to analyze human
nature to deduce binding rules of moral behavior from nature's or God's
creation of reality and mankind. The law of nature, as determined by
nature, is universal. Natural law first appeared in ancient Greek
philosophy. It is often contrasted with the human-made laws (positive
law) of a given state, political entity or society. In legal theory, the
interpretation of a human-made law requires some reference to natural
law. On this understanding of natural law, natural law can be invoked to
criticize judicial decisions about what the law says, but not to criticize the
best interpretation of the law itself.
It symbolizes Physical Law of Nature based on moral ideals which has
universal applicability at all places and terms. It has often been used
either to defend a change or to maintain status quo according to needs and
requirement of the time. The concepts of ‘Rule of Law’ in England and
India and ‘due process’ in USA are essentially based on Natural Law.
Natural Law is eternal and unalterable, as having existed from the
commencement of the world, uncreated and immutable. It is not made by
man; it is only discovered by him. It is not enforced by any external
agency. It is not promulgated by legislation; it is an outcome of preaching
of philosophers, prophets, saints etc. and thus in a sense, it is a higher
form of law. Natural Law has no formal written Code. Also there is
neither precise penalty for its violation nor any specific reward for
abiding by its rules. It has an eternal lasting value which is immutable.
Positive Law (jus positum) are human-made laws that oblige or specify
an action. It also describes the establishment of specific rights for an
individual or group. Etymologically, the name derives from the verb to
posit.
The concept of positive law is distinct from "natural law", which
comprises inherent rights, conferred not by act of legislation but by "God,
nature or reason." Positive law is also described as the law that applies at
a certain time (present or past) and at a certain place, consisting of
statutory law, and case law as far as it is binding. More specifically,
positive law may be characterized as "law actually and specifically
enacted or adopted by proper authority for the government of an
organized jural society."
The purpose of analytical jurisprudence is to analyse the first principles
of law without reference either to their historical origin or development or
their validity. Another purpose is to gain an accurate and intimate
understanding of the fundamental working concepts of all legal
reasoning. The positive law takes law as the command of the sovereign. It
puts emphasis on legislation as the source of law. It regards law as a
closed system of pure facts from which all norms and values are
excluded.
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. 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.
Laws, or a legal system with a lack of adequate laws, can also have
wrong or immoral consequences even if the contents of particular laws
are not unjust. There is no reason to believe that just because a law
passes, it is for the best or that it is right or moral, even if the people
passing it think it is.
For example, laws concerning women are usually in favour of women.
But with changing times, these laws have been misused by women for
implicating men with false charges.
There are times when we talk about unfair or unjust laws, laws that are
immoral, laws that ought not to be obeyed or enforced; and we typically
do not mean just that they are unconstitutional, but that they are
counterproductive to their intended purpose or that they are bad or
harmful or morally unfair or unjust laws.
We also deliberate about what the law ought to be and about which laws
ought to be written, which bills passed or amended, and we believe that it
matters that we try to get it right, not that any law will do as well as any
other or that it does not matter what the law is. We say "there ought to be
a law" about some behaviors that we think are wrong to permit. Law does
not seem to be just the occasional coincidental similarity or accidental
overlap with moral principles or with descriptions of ethically right acts
that would follow from moral principles.
Laws are not generally just randomly chosen out of a set of all possible
behavioral proscriptions or prescriptions, though it sometimes seems that
some particularly flawed or foolish laws may have originated that way.
Normally laws are desired to be crafted carefully and with regard for our
moral notion of justice and fairness, where those concepts apply, and with
utilitarian regard to their fostering good, rather than harmful
consequences.
Given that some laws are immoral, that some laws reasonably are neutral
with regard to morality, and that there are institutional limitations to
enforcing some aspects of morality, the interesting question should be,
not what the relationship is between law and morality, but what it ought
to be.
First, to hold that the law ought to be moral (or at least not immoral or
morally wrong in a serious way) does not mean that the law ought to
coincide at some particular time or instance with either popular or critical
morality. Both might be wrong. Discovering what is actually morally
right sometimes takes vigilance and openness to new evidence and
reasoning. Reasoning is necessary because we are not omniscient beings;
and if we were omniscient, we would not need reasoning; we would
simply know everything and not have to try to deduce what we don't
know from what we do know when the evidence is not totally complete
or the conclusion from it immediately obvious. Omniscience would make
"evidence" and "deductions" of any sort unnecessary. But we are stuck
with having to reason; and reasoning is not infallible.
Second, it is not that the law is somehow objective while morality is not,
and that we need law in order to be objective about morality. If morality
were not objective, it would be impossible to interpret it objectively in
terms of laws that correspond. Laws would not have moral imperative or
moral force if they were not themselves morally right. And if there is
subjective disagreement about what is morally right in a given context,
there will be disagreement about what the objective law ought to be that
conforms to the moral principle at issue. Substituting laws for moral
principles only changes the locus of the disagreement from being about
what the right thing to do is to being about what the right legislation
ought to be, or about what the right verdict ought to be when the law
itself is not clearly definitive. It does not magically eliminate the original
disagreement.
Law and Morality are just two sides of the same coin
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.
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.