INTRODUCTION
Many people mistakenly believe that anything illegal is immoral, and anything lawful is moral. This oversimplification prompts us to explore the complex relationship between law and morality, challenging the common assumption that all laws stem from moral principles.
A landmark debate between Lord Devlin, a prominent English judge, and H.L.A. Hart, an Oxford jurisprudence professor, over the Wolfenden Report on Homosexual Offences and Prostitution ignited widespread intrigue about the connection between morality and law.
This blog will delve deeper into the interesting debate between Devlin and Hart, along with the arguments and stands of Justice Oliver Holmes on how law and morality are different concepts in the first part of this blog. The second part will discuss certain settings in which the relationship between law and morality cannot be denied with an 1857 case law.
LAW IS NOT MORAL, MORALITY IS NOT LAWFUL
- The Wolfenden Report
The Committee making the Wolfenden Report recommended by a majority of 12-1 that “homosexual behaviour between consenting adults in private should no longer be a crime in Britain.”
Two years later, in 1959, Lord Devlin objected to the recommendation while delivering the Maccabean Lecture in Jurisprudence at the British Academy. He fiercely argued that the law should achieve uniformity in society and that it was immoral because society deeply felt disgusted.
In response to this, while agreeing with the recommendation, Hart said that “there must remain a realm of private morality or immorality which is, in brief and crude terms, not the law’s business.” Being a Legal Positivist, Hart took a social scientific approach to the law and regarded law as a social fact. He highlighted that ‘what law is’ and ‘what law ought to be’ are different questions.
Hart also frantically argues that morality may influence the law, but laws and morals are distinct social phenomena in his famous ‘The Concept of Law’. This idea emerges from the fact that law does not always derive from morality. The majority, if not all, of the time the law is used for maintaining socio-bureaucratic order. For instance, breaking traffic rules or littering over public property are wrong in the eyes of the law, but not so much wrong in the eyes of society, making them immune to morality. With this argument which later came to be known as Hart’s ‘separability thesis’, he dismissed Devlin’s assertions as factually wrong as well-ordered states are not necessarily derived from morality.
Hart and his close friend Isaiah Berlin were believers in an open, democratic and plural society, with different concepts of morality and beliefs. These codes are incommensurate and often come into direct conflict with one another. For solving this, both Hart and Berlin suggested that the only viable solution would ironically be an open, tolerant and democratic society.
Hart also argued that there is no requirement to impose a particular one-piece system of morality, but we should and must allow society to choose its own. If we try to do the contrary, then the law would be denying individuals perfectly harmless and consensual actions in their private life as the private realm of the individual is neither law’s nor society’s business.
In a pluralistic society which consists of divergent perspectives on morality, nothing can be termed as inherently wrong. However, along with all these arguments and stands, Hart would also argue that laws must be in the end scrutinised by morality.
- Bad man’s perspective
Just like Hart and Berlin, Justice Oliver Holmes was also of the opinion that the law and morality are different concepts. However, unlike Hart and Berlin, Holmes was a stronger critic of the relationship between law and morality as he was a classic advocate of the complete divorce of law from morality. He argued that understanding of law should be in terms of scope and contents by emphasising that the concept of morality cannot be equated to the scope and contents of law. He supported this by highlighting that morality has no objectivity or objective validity because he thought that a law student could gain a more accurate understanding of law from a ‘bad man’s point of view’.
Homles defined morality as a body of imperfect social generalisations expressed in terms of emotions; and law as a statement of the circumstances in which the public force will be brought to bear upon men through the courts.
LAW IS MORAL
Regardless of the above arguments and stands by various legal philosophers, there exist certain settings where law and morality are related.
There are roughly five settings in which one can draw the relationship between law and morality. Such settings are as follows, when law is related to the advancement of the common good; when law does not contradict moral principles/ natural moral laws; law has emerged and is directed towards the same source i.e. practical reason and prudence; law follows the principle of justice as justice is a concept under morality; and finally when morality is brought under consideration in the application of the positive law, such as done by Justice Caton, Justice Breese and Justice Walker of the Illinois Supreme Court in Shackleford v. Hall (1857).
In the case, as mentioned above, a condition precedent was imposed on an inheritance to the children. The condition stated that any inheritor, who would marry before the age of twenty-one would have to forfeit the estate. The daughter, Mrs. Shackleford, married before turning twenty-one, forfeiting her share of the estate and making her brother the sole inheritor of the estate. The brother argued that the sister by not fulfilling the condition precedent has forfeited the right to the estate. While the sister argued that the condition was a restraint to marriage and therefore void. Judge Caton did exhaustive research and found a principle that when any condition is imposed, it is important for the parties’ actual knowledge of the condition for its impact. The brother was not able to prove that the sister knew about the condition. The judges expressed satisfaction with this outcome in both legal and moral terms.
CONCLUSION
The intricate relationship between law and morality continues to be one of the most compelling debates in jurisprudence. On one hand, legal thinkers like H.L.A. Hart and Justice Oliver Holmes strongly argue for the separation of law and morality, emphasizing that laws are primarily instruments of societal order, not moral compasses. Hart’s “separability thesis” underscores this distinction, asserting that the law should not intrude into the private realm of individual morality unless necessary for maintaining social harmony. Similarly, Holmes’ sharp critique of morality’s subjectivity further supports the notion that law should stand as an independent construct, free from the fluid and often conflicting interpretations of morality.
On the other hand, there are undeniable instances where law and morality intersect. Certain legal principles inherently draw from moral ideals, such as the pursuit of justice, the advancement of the common good, and adherence to natural law. The landmark case of Shackleford v. Hall (1857) exemplifies this overlap. The judges not only applied legal reasoning but also took moral considerations into account, ensuring that fairness prevailed. By recognizing that a condition could not enforce forfeiture without the inheritor’s knowledge, the court upheld a decision that satisfied both legal and ethical standards.
In pluralistic societies, where diverse moral perspectives coexist, the debate becomes even more nuanced. While enforcing a singular moral code through law may suppress individual freedoms, laws rooted in fairness and justice can harmonize conflicting interests. Hart and his contemporaries like Isaiah Berlin proposed an open and democratic society as the best solution to reconcile these divergent moral views. This approach ensures that laws respect individual autonomy while fostering a framework for collective coexistence.
Ultimately, the interplay between law and morality is neither absolute nor rigid—it evolves with societal needs and cultural contexts. While laws may not always derive from morality, and morality may not always align with law, their intersection often defines the balance between individual liberty and social order. This delicate relationship is what makes the study of law and morality endlessly fascinating and essential in understanding the foundations of justice.
Author(s) Name: Vaiddhriti Narayan Singh (Hidayatullah National Law University, Raipur)
