Jurisprudence Ankita

8/17/2019 Jurisprudence Ankita.

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JURISPRUDENCE

MID-TERM PROJECT

Submitted by: Submitted to:

Ankita Sinha Mr Nime!h Da! "uru

Ro## No $%& 'a(u#ty-in-(har)e*

Se(tion +A, Juri!ruden(e

.a/ or Mora#ity: 0hat )o1ern! the e1eryday beha1ior o2 a 3uman4

Nationa# Uni1er!ity o2 Study and Re!ear(h in .a/

Ran(hi* Jharkhand


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.a/ or Mora#ity: 0hat )o1ern! the e1eryday beha1ior o2 a 3uman4

ABSTRACT

In this paper, the author is making an attempt to address the age old question of impact of

morality on the functioning of Law and the Legal Systems. It is indeed notable, that the various

schools from Legal Positivism to Realism, both have varies and distinct opinions on the

connection between the two. he author however !eroes in on the aspect of "#uman $onduct %

&ehavior' and e(amines the e(tent of impact of either notions. )hether law drives the everyday

behavior of a person, or is it *orality that is at the core of any guiding principles in conducting

one+s actions. It is essential to understand the spectrum of activities that are covered under the

term "&ehavior and $onduct' and also, in the broad conte(t of Society, the role of both Law and

*orality as the regulators of #uman $onduct. his is not the first time that the question is being

addressed, and the author has relied on available secondary data, to infuse more information in

the paper. lso, a section in the paper addresses the question in the Indian Scenario, with the

specific mention of instances which goes to prove the point that Law functions at some level, but

it is ultimately, morality that is the guiding force behind the #uman &ehavior.

INTRODUCTION

Contemplate on what the world would be like if there were no traffic rules at all !ould people

be able to tra"el b# automobiles$ buses and other "ehicles on the roadwa#s if there were no

traffic re%ulations& The answer should be apparent to all normal fellows of the human

species !ithout basic rules$ no matter how much some would like to a"oid them or break them$

there would be chaos

An eminent writer and professor of law said that an# beha"ior could become the content of a

le%al norm Beha"ior primaril# has been %o"erned b# this 'Conscience (rinciple) of moralit#

*aws therefore are infused with the intent to re%ulate the Beha"ior of all +umans$ at an

authoritati"e le"el It is e"ident that both law and moralit# ser"e to channel our beha"ior *aw

achie"es this mainl# throu%h the intimidation of sanctions if we "iolate le%al rules ,oralit# too

in"ol"es incenti"es- bad acts ma# result in blame and condemnation$ and %ood acts ma# result in

ri%hteous feelin%s and acclaim


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B# law$ here we$ mean the bod# of rules that we term le%al$ that is$ the rules that are determined

and enforced b# the state and that are intended to channel beha"ior and to resol"e certain ad"erse

e"ents ,oralit#$ essentiall# means$ rules of conduct that are associated with certain distincti"e

ps#cholo%ical and social attributes Taken as a separate field of stud#$ law is morall# neutral But

as a part of man.s realit#$ of his s#mbolic world$ law is not onl# a datum imposed on our

e/perience$ but a task$ an ob0ect of human stri"in%$ a purposeful action 1 Thus$ e"en thou%h the

positi"ists ha"e re0ected a necessar# connection between the two fields$ *aw and moralit# are co2

e/istent and connected to the e/tent that the# cannot be ar%ued to be independent of each other

*aws are a part of the +uman realit# and ,oralit# is the essence of the +uman realit# *aw and

moralit# meet in man who is a moral bein% and a sub0ect of law$ in the same wa# as the

dichotom# of fact and "alue finds in man its unit# and solution$ because without man and his

interpersonal relationships there is neither factualness nor "alue Both law and morals are but

threads of a carpet in which the# are interwo"en and which leads the uni3ue and unrepeatable

human ad"enture be#ond law and mor4les

The connection here proposed is a connection between moralit# and present$ not future law A

person.s conduct$ if sub0ect to le%al challen%e$ is 0ud%ed b# law as it comes later to be interpreted

b# a court or e/ecuti"e official It is true that the necessar# connection with moralit# here

proposed is a connection with moralit# as a persuasi"e$ not an authoritati"e source of law In an#

such societ# there is an inbuilt pressure towards impro"in% the law morall# and in other wa#s5

The difference between the le%al and moral duties and ri%hts is not a difference of meanin% It is

a difference between formal$ institutionall# reco%ni6ed duties and ri%hts and their informal$ non2

institutional e3ui"alents The use of these notions outside the law implies that we ou%ht to treat

certain actions and interests rather as if the# formed part of the institutional apparatus that makes

up the law$ thou%h the# do not If it is said that a father has a moral obli%ation to support the

mother of his child this means that$ thou%h perhaps not le%all# bound to do so$ he should re%ard

himself somewhat as if he were le%all# bound to support her In need not be implied that the

moral ri%ht or obli%ation should be con"erted into a le%al one It remains an open 3uestion

1 A"ailable at http-77www0storor%7stable7589:;:;; 25=19?

2 +onor@ Ton#$ 'The Necessar# Connection between *aw and ,oralit#) O/ford ournal of *e%al

Studies$ ol 55 pp ;2;>


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whether it would be %ood polic# to con"ert the moral obli%ation to support the child.s mother

into a le%al one ,oral ri%hts and obli%ations can stand on their own feetE but the meanin% of the

terms .moral ri%ht. and .moral obli%ation. is parasitic on the le%al model from which the# are

historicall# deri"ed

As +art has stressed8$ small societies can onl# li"e with moral rules$ without an# official

structure But the# ha"e serious problems- lack of certaint#$ as there is no one to consultE static

nature$ as there are no procedures to chan%e themE the inefficienc# of diffuse social pressure The

pro0ect of findin% %ood solutions recommends passin%$ in certain cases$ from moralit# to law

The "er# d#namics of the re%ulator# e/perience stud# of the conse3uences$ pressure of affected

%roups$ appearance of new "alues to defend$ establishes differences$ increases inno"ations$ and

encoura%es certain independence But e"en the independence of law from moralit#$ as we shall

see$ takes place within a pre"ious re%ulator# scope$ which remains as the last referent$ e"en

thou%h it ma# be to introduce amendments

Also$ important is the 3uestion as to what constitutes the e"er#da# beha"ior of an a"era%e

+uman bein% +is tendenc# to not break the traffic rules$ not %et in a fi%ht with another person$

not be a nuisance in an# form in the societ# or his basic beha"ior of a %ood person$ who tells

truths$ and respects his elders The 3uestion is to impossible to be %i"en a definite answer *aw

has its domain and it %o"erns certain aspects$ and there is the force of law which %o"erns the

beha"ioral aspects in the personFs li"in%

It is a conse3uence of the formation of the concept that since moralit# secures le%al "alidit#$ the

law recei"es its "alidit# outwardl#$ throu%h the le%itimatin% power inherent either in the moral

content of le%al norms$ or in the correspondence between le%al processes or norm creation and

application and our moral consciousness Gor althou%h the positi"ist insists that le%al "alidit# is

ultimatel# a product of the normati"e structure of a le%al s#stem$ this structure consists entirel#

of rules that specif# properties of the Hpedi%reeH or formal le%al "alidit# of positi"e law

3 ,ark Bennett '+art and Ra6 on the non2instrumental moral "alue of the rule of law- A Reconsideration) '*aw

and (hilosoph#) "ol 8=$ no >


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Thus$ be%ins the anal#sis of the Differences between the functionin% of the two theorems and

their practicalit# in as much as the# %o"ern the +uman Conduct !hether it is *aw that comes or

the frontrunner or ,oralit# shall be the 3uestion to be determined

*A! RSUS ,ORA*ITJ AS RKU*ATORS OG CONDUCT L B+AIOUR

It is important to note that the two aspects which re%ulate the +uman Conduct$ can be

differentiated on "aried %rounds Both ha"e a different source of ori%in and the methodolo%# in

which the# ha"e come into bein% as completel# different from each other

Girstl#$ the creation of le%al rules normall# is not a "er# costl# process$ re3uirin% onl# that a law

be passed b# a le%islati"e bod# or that a 0ud%e make a decision that helps to communicate a rule$

and that the rule be properl# con"ersed !hereas$ the formation of a moral rule$ while it is not

e/pensi"e$ re3uires a lon% drawn social process To instill the moral rules that one should not

litter$ or lie$ or cheat$ and the like$ re3uires constant effort o"er the #ears of childhood


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Thirdl#$ we come to the 3uestion '!hat is the ma%nitude of the moral sanctions&) !e all mi%ht

be afraid of the conse3uences of an# immoral act that we do$ but we also$ know that as lon% as

no one knows that we lied$ or cheated$ an# immoral act is usuall# unnoticed and %oes scot free

That moral sanctions are unable to pre"ent bad conduct throu%h incapacitation of indi"iduals$

which is somethin% that is accomplished b# the le%al sanction of imprisonment Thus$ an

important tool for reducin% bad conduct that is a"ailable under the law is absent from the moral

arsenal ,# presumption$ then$ is that le%al rules tend to be superior to moral rules in the

potential potenc# of the sanctions that enforce them

There are so man# other points of distinctions on *aw and ,oralit#$ the probabilit# of

enforcement that %oes to effect on whether we will be punished or not$ and also$ the le"el of

information ,oral principles$ like some basic principles are mostl# uni"ersal The# ha"e a

%eneral o"er reach abo"e the le%al principles The costs of enforcement of le%al rules ha"e to do

with the e/penses of identif#in% "iolators and of ad0udication$ which can be substantial$

especiall# when public enforcement a%ents are in"ol"ed B# contrast$ the costs of enforcement of

moral rules are none/istent with re%ard to internal sanctions- a person knows for free what he did

and did not do In re%ard to e/ternal sanctions$ costs of enforcement are probabl# lower on

a"era%e than those of le%al rules$ e"en thou%h there mi%ht be some ad0udication in the form of

%ossip and discussion of the propriet# of acts Comin% to the costs of imposition of the sanctions$

re%ardin% moral sanctions$ consider first %uilt *ike imprisonment$ %uilt is a sanction that is

sociall# costl# to ha"e imposed because it is suffered b# indi"iduals and not automaticall# offset

b# %ains to others +owe"er$ unlike imprisonment$ %uilt does not in"ol"e administrati"e e/pense

to effect$ so it is a sociall# cheaper form of sanction than imprisonment

"er#where$ there are moral prohibitions and re3uirements re%ardin% ine"itabl# conflicti"e

social issues- se/ and marria%e$ propert#$ securit# in life$ ph#sical inte%rit#$ honour and

reputation$ contracts and promises$ treatment %i"en to the ill and need# "er# culture has the

concept of murder$ distin%uishin% it from e/ecution$ death in action and other 0ustified

homicides The notions of incest and other rules re%ardin% se/ual beha"iour$ the prohibition of

l#in% in defined circumstances$ the notion of restitution and reciprocit#$ of mutual obli%ations

between parents and children These and man# other concepts are absolutel# uni"ersal


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Thus$ e"en thou%h the practical aspects of the importance of law$ far outwei%h the applicabilit#

of morals in a +umanFs Conduct It is essential to note$ howe"er that$ there is no wa#$ law holds

an# precedence in %o"ernin% his e"er#da# beha"ior o"er moralit#$ which is a more secure and

dominatin% factor$ in m# e"er#da# conduct$ if I am %od2fearin% person that isM

CONC*USION

Almost from the be%innin% codes of beha"ior ha"e been re%arded as the most effecti"e wa# to

ci"ili6e the heathen Keneral moral principles are considered sufficient for the superior man but

it is surmised that the common man must be supplied with minute rules of conduct ,oral

(rinciples ha"e a priori impact on a +uman Bein%$ and since his birth$ and with the e"entual

sociali6ation that occurs in the initial #ears$ it conditions the person in such a wa#$ that the first

implication in the conse3uence of an# act undertaken shall be the thou%ht of the ,oralimplications and not the *e%al Sanctions

An a"era%e human in his lifetime$ is more afraid of *aw$ there is no$ room for doubt there$ but

also$ important to consider is that$ on a dail# basis$ it is more important to him$ to keep a clear

conscience 'To praise a man for his moral responsibilit# is fundamentall# to declare that he is

%uided b# reason$ that he is a true a%ent who acts onl# after proper reflection and who can be

trusted to act accordin% to rational choice)> The difference between moral responsibilit# in the

restricted sense impl#in% merel# liabilit# to praise or blame and moral responsibilit# in the lar%er and honorific sense lies wholl# in the fact that the latter entails more than the former$ "i6$

rational deliberation as opposed to simple capacit# for deliberation

!hen we speak of natural law we can mean man# thin%s !e can understand the term in its

ethical connotation$ namel#$ that there are certain %enerall# "alid principles of human beha"ior

which can be deri"ed from human nature and which are critical of the norms we usuall# call law

Or we can %i"e the term a le%al connotation b# holdin% the "iew that these principles are not onl#

moral criteria for e"aluatin% whether laws are moral or immoral$ but that the# define law in thesense of bein% the constituti"e criteria of law

4 (err#$ realms of "alue ; ?- authoritarianism is the aspect which moralit# presents to dependenceAnd

immaturit# It is the moralit# of childhood2whether of the indi"idual or the %roup

5 Olson$ the ,oralit# of Self2Interest 1> ?


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It is ob"ious that one can adhere to the former connotation$ the ethical one$ without ad"ocatin%

the latter meanin% of the term$ but that one cannot hold as true the latter connotation without at

the same time subscribin% to the former one Then$ a%ain$ one can ar%ue that there are norms of

natural law which are e/ternal to a s#stem of positi"e law but which predetermine and define it$

or that the moralit# of law is intrinsic to its "er# structure Natural law in its ethical meanin% is

usuall# deduced from the alle%edl# teleolo%ical character of human nature

Tr#in% to restate a natural law position from an empirical and semi2sociolo%ical point of "iew$ +

* A +art concludes that the "er# notion of law has some necessar# connection with moralit#

This inner moralit# of law he finds principall# in the re3uirement of procedural 0ustice that like

cases should be treated alike and in the standard of strict adherence to the law +art sees fre3uent

moral dilemmas in the application of law$ when we act un0ustl# either b# enforcin% an un0ust law

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Jurisprudence Ankita