Criticism of Law and MoralityThe best description of natural law; according to one leading natural lawyer, is that it

provides a name for the point of intersection between law and morals. There is an

unquestionable tension between what ‘is’ and what ‘ought’ to be. Theories of natural

law attempt to resolve this. It is put simply, is that what naturally is, and ought to be.

If we are to understand the nature and impact of the natural law project, we must

recognize that it yields a different logic. Many dispute one of the central tenets of

natural law, the view that objectivity is possible in morals. It claims that moral

properties are indeed ‘real’ in the sense that they are not merely illusory not simply

reducible to the subjective affective experiences of individuals as its detractors claim.

Morality is simply a matter of personal preference and subjective taste.

Lon E. Fuller (1902-78) is the best remember for his secular natural law position that

law has an ‘inner morality’. And that a legal system is the purposive enterprise of

subjecting human conduct to the governance of rules. We are concerned only with the

nature of Fuller’s claim that there is a necessary connection between law and

morality. Fuller relates the Moral tale of King Rex and the eight ways in which he

failed to make law. Fuller adopts a procedural natural law approach. The eight ways

to make law are, in Fuller’s theory reflected in his eight desiderata; eight kinds of

legal excellence forward which a system of rules may strive embodied in the inner

morality of law. Among the main criticism of this account of law is that it proposes

what are, in essence a set of procedural standards to which a legal system ought to

confirm, John Finnis also describes his book as ‘introductory’ Natural law and

Natural rights constitute a major testament of classical natural law theory.1

Hobbes says, we are in a natural state of perpetual war of all, where no morality exists

and all live in constant fear.

According to Lock, preserved the natural rights to life, liberty and property and the

enjoyment of private rights. The pursuit of happiness, Locke derives natural right

from natural law.

1 Raymond W. “Understanding Jurisprudence” Page- 27, 281

A valuable starting point is professor Hart’s important essay ‘positivism and the

separation law and morals.

Bentham is the best known as utilitarian and law reformer. But he insisted on the

separation between the ‘is‘ and ‘ought’ of law. Austin was equally emphatic in

maintaining this distinction, but his analysis is now generally regarded as much

narrower in scope and objective than Bentham’s. The modern view is certainly that

Austin was considerable more conservative politically than his mentor.2

According to Austin; Law is a general rule of conduct but that is not practicable in

every sphere of law. A law in the sense of the Act of the legislature may be particular

in the fullest sense of the world.

Law is a command and that command has to be communicated to the people by whom

it is meant to be obeyed or followed. This view of Austin is not tenable. Promulgation

is usually resorted to but it is not essential for the validity of a rule of law.

Law of command,

According to Austin, law is a command of the sovereign but all laws cannot be

expressed in terms of a command. The greater part of a legal system consists of laws

which neither command nor forbid things to be done. Laws giving citizens the right to

vote, laws conferring on leaseholders the right to buy, and the reversion laws are

concerning the sale of property and the making of wills. The term command suggests

the existence of a personal commander. This is especially so where sovereign is

divided as in federal states. Commands conjure up the picture of an order given by

one particular person.

Sanction,

Austin’s definition of law may be true of a monarchial police state, but it cannot be

applied to a modern democratic country whose machinery is employed for the service

of the people. The sanction behind law is not the force of the state. Sanction is not an

essential element of law. If we apply this fact to every kind of law, we are liable to

2 Raymond W. “Understanding Jurisprudence” Page- 542

arrive at absurd conclusion. It is true that there is such a thing as sanction in case of

criminal law but now such sanction is to be found in case of civil law.3

According to Bentham, he argues that commands are merely one of four methods by

which the sovereign enacts law; Bentham’s is concerned with the distinction between

Penal and civil laws. Every law has a penal and a civil part, even in the case of title to

property there is a penal element. He seeks to show is that laws which impose no

obligation or sanctions are not compete law. The concept of a command was

important for Bentham. Bentham’s views that all complete laws are imperative in

form.

Bentham a law contains two parts the directive part which announces the conduct to

be done and the ineitative part which predicts the sanction. He recognizes that a

sanction may be not merely coercive but may also be in the form of a reward.

Bentham’s sovereignty refers to ‘a state of political society’. He alludes only to the

positive condition. He recognizes not only that sovereignty may be limited or divided,

but that limitation on the sovereign power is actually a correlative of limited

obedience to the legislator’s command. He also suggested that where the people

decided not to obey a particular command this constitutes a limitation of sovereignty.

Bentham explains the continuity of legal system where the sovereign dies or the

sovereign body is in recess.

Bentham is also willing to concede that a sovereign’s commands would constitute law

even in the absence of sanctions in the Austinian sense. He discorded this factor, and

considered rewards as praemiary sanction because rewared could also be induced

compliance.

Distinction between law and morality

There is a distinction between law and morality, Vinogradoff writes, “Law is clearly

distinguishable from morality”. The object of law is the submission of the individual

to the will of organized society while the tendency of morality is to subject the

individual to the dicates of his conscience. According to Pollock, ‘Though much

3 V.D. Mahajan. “Jurisprudence and legal theory”, 5th Edition, p-353

ground is common to both, the subject matter of law and ethics is not the same. The

field of legal rules of conduct does not coincide with that of moral rules and is not

included in it and the purposes for which they exist are different. Morals or ethics is a

study of the supreme good, law lays down what is convenient for that time and place,

ethics concentrates on the individual rather than society.’

Bentham says, “In a word, law has just the same center as morals but it has by no

means the same circumference.”

Professor, H.L.A. Hart writes that the vague sense that the difference between law an

morals is connected with contrast between the internality of the one and the

externality of the other.4

A study of the various legal systems makes it clear that law and morals have had a

long union with occasional desertion and judicial separation but have never been

completely divorced. Positive law and just law correspond to positive morality and

rationally grounded ethics. It is true that the development of law, at all-time s and

places has in fact been profoundly influenced both by conventional morality and ideas

of particular social groups and also by the forms of enlightened moral criticism of

these people whose moral horizon has transcended the morality currently accepted.

References:

Raymond, W. “Understanding Jurisprudence”

V.D. Mahajan. “Jurisprudence and legal theory”, 5th Edition

4 V.D. Mahajan, “Jurisprudence and legal theory”, 5th Edition page- 98-994