No Moral Norm Can be a Legal Norm Per se

 

Divya Chugh

Hidayatullah National Law University, Raipur, Chhattisgarh

 

 

INTRODUCTION:

Both morality and law belong to the norm behaviour, they are different in nature. The legal norm is enforced though the evaluation of human behaviour is ground for establishing and administering legal norms, people are required to observe them. Whether they are for or against them, people are compelled to obey the law established and enforced by the state. This compulsion is a unique feature of legal norms in contrast with moral norms. On the other hand, moral norms are not imposed coercively by the state. To put into action, this sense of moral obligation depends on the impact of public opinion, people’s beliefs, customs, traditions and education. It is evaluated in terms of the benevolence and malevolence, justice and injustice, fairness and unfairness, honesty and dishonesty of human behaviour. The moral norm has no specific form, but exists in the social ideology and the popular views and beliefs of current society. Hence morals and law are different norms. For example, if a child found stealing money to save his mother from dying, his act is illegal and he may be punished for the same, although the purpose for which he did that was to save his mother. This shows that there are moral acts, which are not legal, and there is punishment for the same.

 

What is legal isn’t always moral!

The objection against abortion is based on the notion of transcendent human rights.

I will agree that since abortion is legal a woman receives a legal right to have an abortion. But just because it is legal it doesn't mean it is moral. There is a difference between being legal and being moral. There were lots of things that were legal in the past. Apartheid was legal in South Africa, but it wasn't moral. It was a violation of a transcendent human rights and ought to have been abolished. The same thing applies to the institution of slavery in this country.

 

People may disagree with my particular view on the abortion issue, but please understand what it is. My view is that the unborn child is a human being, therefore the rights of the Constitution accrue to that unborn child. Appealing to the law doesn't help. It misses the point entirely. What is legal isn't always moral. There is a legal right but it may be in violation of a transcendent right, and this is why we take exception. This is the argument pro-lifers are offering.

 

"Society says" relativism says that the law defines what is moral. Such a relativism implies that because man's law is the highest law and the Supreme Court is the highest level of man's law, then the highest moral court is the Supreme Court. Once the Supreme Court has spoken, discussion is over. That's the kind of belief, I think, that fuels the comments in the Times, article named "War against a Woman's Right." The woman has the legal right to abort, but although the act is moral.

 

 How this view equates law with morality? If it is legal, it is moral. Such a view reduces morality to mere power, either the power of the government or the power of the majority. If we have the power to set the standards, then we can determine what is a right. Another way of putting that is, might makes right.

 

This is exactly the kind of argument that pro-lifers are concerned with and are trying to counter. They are offering an argument based not on man's law, but on a transcendent law just like the founders and the framers of the Constitution used to justify their cause. Just like those who fought slavery used to justify their cause. Just like those who fought for civil rights and against apartheid used to justify their cause. It is the same kind of argument. Now it may be that the argument is misapplied, but the kind of argument must be seen. It is precisely the issue that pro-abortionists refuse to address or apparently even to recognize: the transcendent argument of human rights. Basically, my concern is whether it's a moral alternative given a higher law, a law that transcends man's law, a law pertaining to self- evident and inalienable rights that all men are created equal. If all men are created equal, if what it says in our Declaration of Independence is true, then abortion cannot be held to be sound and moral because it is a man-made law that goes against God's higher law.

 

Positivism in Law

The positivist movement started at the beginning of the 19^th Century. It represented a reaction of the a priori methods of thinking which turned away from the realities of actual law in order to discover in nature or reason the principles of universal validity. Actual laws were explained or condemned according to those principles.

 

Prof. Hart points out that the term “positivism” has many meaning. One meaning is that laws are commands. This meaning is associated with Bentham and Austin who are the founders of British positivism. The second meaning is that decisions can be deduced logically from pre-determined rules without recourse to social aims, policy or morality. The fourth meaning is that the law as it is actually laid down has to be kept separate from the law that ought to be. The fourth meaning seems to be currently associated with positivism.

 

Jeremy Bentham (1742-1832)

Bentham advocated an imperative theory of law in which the key concepts are those of sovereignty and command. Bentham thought that a sovereign’s command would be law even if supported only by religious or moral sanctions. Bentham has undertaken “rational reconstruction”. According to Bentham: “ A law may be defined as an assemblage of signs, declarative of a volition, conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons who in the case in question are or are supposed to be subject to his power”. Thus Bentham concept is an imperative one.

 

The essence of his theory can be said as: Bentham was an ardent champion of codified laws. He thinks that sanctions play a less prominent part, as opposed to Austin, he thinks that a sovereign’s command would be law even if supported by religious sanctions. His was against the law that supported custom. His basic purpose was to bring pleasure and pain, he thinks that pleasure and pain are the ultimate standards on which a law is to be judged.

 

John Austin (1790-1859)

Austin’s most important contribution to legal theory was his substitution of the command of the sovereign for the ideal of justice in the definition of law. He defined law as “a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.” Law is strictly divorced from justice. Instead of being based on ideas of good or bad, it is based on the power of a superior. The first division of law made by Austin is that laws set be God to men (Law of God) and laws set by men to men (human laws). Austin puts great emphasis on the relation between law and sovereign. Law is law because it is made by the sovereign and sovereign is sovereign because it makes law. The relation between the sovereign and law is the relation between the centre and the circumference.

 

The main criticism of Austin’s theory of law is that it disregards the moral or ethical elements of law. And according to him, law is a command of the sovereign backed by sanctions. Duty and sanctions are correlative terms, the fear or sanction supplying the motive for obedience. Austin has removed many false notions which had obscured the true meaning the true meaning of law and legal terms. He gave a death blow to the theory of natural law. It is said that Austin, has stressed on the view that law and morals has to be separated. There is no connection between the two. According to Austin, the core nature of law is that, laws are commands of sovereign.

 

Professor H.L.A. Hart

The view of Prof. Hart is that the significance of rules has been neglected. He uses “rule” to distinguish between “being obliged” and “having an obligation”. A gunman orders B to hand over his money and threatens to shoot him if he does not do so. In this case, B is obliged to hand over the money but he has no obligation to do so. B believed that some harm or other unpleasant consequences would  befall  him if he did not hand over the money to the gunman and  he handed over the money to avoid those consequences. The statement that a person was obliged to obey someone is, the main, a psychological one referring to the beliefs and motives with which an action was done.

 

According to Hart, he gave two definition as what law is: Firstly that, Decisions can be deduced logically from predetermined  rules without recourse to social aims, policy or morality and  Moral Judgements cannot be established or defended by rational argument, evidence or proof. He doesn’t oppose that law is influenced by moral convictions, but he says that a rule does not become law until it has been established in some form recognised by the basic criteria of the legal system in question. Hart’s concept is based on the distinction between rules creating duties and rules creating powers as a legal system is constituted by their Union.

 

The views given by three authors have shown the relationship between law and morality. The kind of relationship which they consider and which exists between them. No hard and fast rule can be there whether ‘no moral norm can be a legal norm per se’.

 

CONCLUSION:

To conclude, I would like to say that there can’t be a clear cut distinction drawn that moral norms are legal norms per se. Moral acts may be illegal as well as shown by the above example. On the other hand it is also true that what is legal is not always moral. Behaviour accepted as the norm today would have been worthless the past times, like Foul language is spoken by children in front of and sometimes to teachers and other adults. When I was a youngster, it was unthinkable to use foul language to an adult; it would have meant a smack across the face. In the past times, such an acceptance of illegitimacy would have been unthinkable. Moral norms also have punishment if they being violated in the form of reciprocity based method and punishment method.

 

Finally, to conclude it can be said that “no moral norm can be a legal norm per se.” There are situations when a moral thing is illegal and legal things cannot be blindly accepted all the times, as what is legal is not always moral. Following the positivist saying they say that, Legislators do enact particular laws because of its moral convictions, and the law is influenced by the same. But a rule does not become law until it has been established in some form recognised by the basic criteria of the legal system in question.

 

REFERENCES:

1.       V.D Mahajan’s, Jurisprudence and Legal Theory,Eastern Book Company, 5^th ed.2012

2.       R.W.M. Dias, Jurisprudence, Aditya Books Pvt. Ltd., 5^the ed. 1994

3.       Nigel E Simmonds, Central Issues In Jurisprudence, Sweet and Maxwell, 4^th ed. 2013

 

Articles:

1.       ‘Positivism and the Separation of Law and Morals’ Harvard Law Review  (1957-58) :71 at p601 n 25

2.       John Austin, The Province of Jurisprudence determined,Wilfrid Rumble,(Cambridge University ed.1995)