Relationship and Difference between Law and Morality
At first there seems to be no distinction between law and morality. Plato, there is a very close connection between true justice or morality and. ity, and the third denies this. The proponents of the traditional natural law argument hold that there is a necessary relationship between law and its moral content. Relationship between law and morality: “The state is founded on the minds of its citizens, who are moral agents”, says; Professor R.N. Gilchrist, “.A bad people.
It is the lawgivers, in these early societies, who determine what is right and wrong. But it is not long before thoughtful people recognize the difference between what is actually legal, or legally right according to the political authorities and what should be legal.
What should be legal roughly corresponds to what is really right or just, that is, what we would call morally right.
We find, for instance, the distinction between what is legally or conventionally right and what is naturally or as we would say today morally right. Sometimes this is expressed as an opposition between what the gods command i. This is dramatically illustrated in Sophocles' tragedy Antigone, in which the heroine defies the decree of the king the source of "legal right" in the circumstances and buries her brothers an act the audience would assume was morally right. The contrast between what the state demands and what the gods demand is not the only way that this legal v.
We find it also in the important Greek philosophers, who frequently discuss the distinction in terms of appearance and reality, or between what superficially seems or appears to be the case and what a thorough rational investigation reveals.
Plato, for example, holds that knowledge of what is just or moral, and the ability to distinguish true justice or morality from what is merely apparently just depends on the full development and use of human reason.
According to Plato, there is a very close connection between true justice or morality and human well-being or flourishing. Legal and political arrangements that depart too far from true justice should, if possible, be replaced by arrangements that better promote justice and thus well-being.
The Problem about the Nature of Law J. Raz The theory of knowledge attempts to clarify the nature of knowledge, the philosophy of logic examines the definition of logic, moral philosophy reflects on the nature and boundaries of morality and so on. One finds philosophers who took the enquiry concerning the nature of law to be an attempt to define the meaning of the word "law". Traditionally those who adopted the linguistic approach concentrated on the word "law".
However, it encountered the overwhelming problem that that word is used in a multiplicity of non-legal contexts. We have laws of nature and scientific laws, laws of God and thought, of logic and of language, etc.
Clearly the explanation of "law" has to account for its use in all these contexts and equally clearly any explanation which is so wide and general can be of very little use to legal philosophers.
Only one assumption can the explanation of "law" hope to provide the answer to the legal philosopher's inquiry into the nature of law. That assumption is that the use of "law" in all its contexts but one is analogical or metaphorical or in some other way parasitical on its core meaning as displayed in its use in one type of context and that that core meaning is the one the legal philosopher has at the centre of his enquiry.
Unfortunately, the assumption is mistaken. Its implausibility is best seen by examining the most thorough and systemic attempt to provide an analysis of "law" based on this assumption, that proposed by John Austin in The Province of Jurisprudence Determined. The Lawyers' Perspective Many legal philosophers start from an unstated basic intuition: Quite naturally and imperceptibly they adopted the lawyers' perspective on the law.
Lawyers' activities are dominated by litigation in court, actual or potential. They not only conduct litigation in the courts.
They draft documents, conclude legal transactions, advise clients, etc. From the lawyer's point of view the law does indeed consist of nothing but considerations appropriate for courts to rely upon.
Hans Kelsen says he follows a combination of the linguistic approach and the institutional approach: In defining the concept of law we must begin by examining the following questions: Do the social phenomena generally called law present a common characteristic distinguishing them from other social phenomena of a similar kind? The clue to the methodological approach Kelsen was in fact pursuing is in his insistence that legal theory must be a pure theory. Kelsen regarded it as doubly pure.
It is pure of all moral argument and it is pure of all sociological facts. Kelsen indicates his belief that the analysis of legal concepts and the determination of the content of any legal system depends in no way at all on the effects the law has on the society or the economy, nor does it involve examination of people's motivation in obeying the law or in breaking it.
For Kelsen, it is self-evident that legal theory is free of all moral considerations. The task of legal theory is clearly to study law. If law is such that it cannot be studied scientifically then surely the conclusion that if the law does involve moral considerations and therefore cannot be studied scientifically, then legal theory will study only those aspects of the law which can be studied scientifically.
Since Kelsen has no good reason to insist that legal theory should be free from moral consideration, he has no good reason to delimit the law in the way he does. The international Approach It is the lawyer's perspective which delivers the verdict.
Yet there is something inherently implausible in adopting the lawyer's perspective as one fundamental methodological stance. There is no doubting the importance of the legal profession and of the judicial system in society. It is however, unreasonable to study such institutions exclusively from the lawyer's perspective. Institutional approach seems much superior to its rivals.
Theory of Relationship between Law and Morality
The institutional approach strives to present an analysis of a central political institution should be accepted as the analysis of law. From the institutional point of view, the basic intuition is the starting point for further critical reflection.
It is entirely plausible to regard the notion of law as bound up with that of a judicial system but what are the essential characteristics of a court and why are they important to the political organization of society? Three features characterize courts of law: They deal with disputes with the aim of resolving them.
They issue authoritative rulings which decides these disputes. In their activities they are bound to be guided, at least partly, by positivist authoritative consideration. At the highest level of philosophical abstraction the doctrine of the nature of law can and should be concerned with explaining law within the wider context of social and political institutions.
It shows how the inclination to identify the theory of law with a theory of adjudication and legal considerations with all those appropriate for courts is based on a short sighted doctrine overlooking the connection of law with the distinction between executive and deliberative conclusion. Clearly, a theory of adjudication is a moral theory. It concerns all the considerations affecting reasoning in the courts, both legal and non-legal. When the doctrine of the nature of law is identified with a theory of adjudication it becomes itself a moral theory.
The doctrine of the nature of law yields a test for identifying law the use of which requires no resort to moral or any other evaluative argument. But it does not follow that one can defend the doctrine of the nature of law itself without using evaluative arguments. Its justification is tied to an evaluative judgment about the relative importance of various features of social organizations and these reflect our moral and intellectual interest and concerns. Law and Morality In the modern world, morality and law are almost universally held to be unrelated fields and, where the term "legal ethics" is used, it is taken to refer to the professional honesty of lawyers or judges, but has nothing to do with the possible "rightness" or "wrongness" of particular laws themselves.
This is a consequence of the loss of the sense of any "truth" about man, and of the banishment of the idea of the natural law. It undermines any sense of true human rights, leaves the individual defenseless against unjust laws, and opens the way to different forms of totalitarianism.
This should be easy enough to see for a person open to the truth; but many people's minds have set into superficial ways of thinking, and they will not react unless they have been led on, step by step, to deeper reflection and awareness.
Relationship between Law and Morality or Ethics Law is an enactment made by the state. It is backed by physical coercion. Its breach is punishable by the courts. It represents the will of the state and realizes its purpose.
Laws reflect the political, social and economic relationships in the society. It determines rights and duties of the citizens towards one another and towards the state. It is through law that the government fulfils its promises to the people.
Theory of Relationship between Law and Morality
It reflects the sociological need of society. Law and morality are intimately related to each other. Laws are generally based on the moral principles of society. Both regulate the conduct of the individual in society.
They influence each other to a great extent. Laws, to be effective, must represent the moral ideas of the people.
But good laws sometimes serve to rouse the moral conscience of the people and create and maintain such conditions as may encourage the growth of morality. Laws regarding prohibition and spread of primary education are examples of this nature. Morality cannot, as a matter of fact, be divorced from politics.MORALITY AND LAW
The ultimate end of a state is the promotion of general welfare and moral perfection of man. It is the duty of the state to formulate such laws as will elevate the moral standard of the people. The laws of a state thus conform to the prevailing standard of morality. Earlier writers on Political Science never made any distinction between law and morality. Plato's Republic is as good a treatise on politics as on ethics. In ancient India, the term Dharma connoted both law and morality.
Law, it is pointed out, is not merely the command of the sovereign, it represents the idea of right or wrong based on the prevalent morality of the people. Laws which are not supported by the moral conscience of the people are liable to become dead letters.
For example laws regarding Prohibition in India have not succeeded on account of the fact that full moral conscience of the people has not been aroused in favor of such laws. The total cost of such an attempt may well be greater than the social gain.
Some points of distinction between law and morality may be brought out as follows: The Oxford English Dictionary defines the law as: The central themes of positivism are the contentions: In this essay I will examine the positivist assertion that law is identifiable independently of morality, with a particular focus on the theory of H.
Law regulates and controls the external human conduct. It is not concerned with inner motives. A person may be having an evil intention in his or her mind but law does not care for it. Law will move into action only when this evil intention is translated into action and some harm is actually done to another person.