THE SOCIOLOGICAL APPROACH TO LAW ‘MORALS’
MORAL COURAGE: Requires obligation to honour “what is the right thing to do”? – Danger management “What do I need to handle my fear”? Expression and action “What action do I need to take to maintain my integrity”? Sadly I say the masses lack ‘Moral Courage’.
INTEGRITY: Means being honest and having strong moral principles.
ATTRIBUTES OF INTEGRITY: (1) Dependability, this means people can rely on you and that you keep promises. (2) Loyalty, a strong support or allegiance. (3) Honesty. Integrity itself requires honesty. Honesty is a refusal to lie, steal, deceive in any way. (4)Good judgement.- is to consider the consequences of ones decisions, thinking before acting and having the tools to make good decisions in various situations. (5)Respect builds feelings of trust, safety and wellbeing. Being considerate of peoples feelings, self discipline and making responsible choices to reach personal goals. Respect owed morally regardless of social position, individual characteristics or achievements or merit.
COMMON MORALITY: The moral system that thoughtful people use, usually implicitly when they make moral decisions and judgements. The behaviour that affects others.
CARE VS HARM: (a) Fairness vs Cheating, (b) Behavior must be fair and just. (c) Liberty vs Oppression. (d) Tyrannical oppression is wrong. (e) Loyalty vs Betrayal. (f) Morality requires faithfulness to a group or another individual.
CONTRA BONOS MORES’:”Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, ‘contra bonos mores,’ i.e., immoral.” -Justice Antonin Scalia
Common law is seen as a system shaped by ‘morality’
DIFFERENCE BETWEEN DEFINE LAW AND NATURAL LAW: Divine law comes directly from God, whilst Natural law is inherent in human beings. Devine and Natural law are ancient concepts that govern human behaviour. Human beings possess intrinsic values that govern their reasoning and behaviour
SUBSUMING NATURAL LAW INTO COMMON LAW: Blackstone’s Commentaries served as the primary educational basis for newly emerging proprietary schools and, from 1817, university law schools, such as Harvard’s under the leadership of Joseph Story.
LEGISLATION AND MORALS: But NOT the same circumference. The State puts its own sanction behind moral rules that are enforced by them (Moral vs Immoral). Hence many immoral acts are not illegal eg sexual acts- such as Drag Queen Story Time for children, and laws that are based on morals, and may be even opposed to morals eg; technical matters, traffic laws etc.,
THE TEST OF LAW: Morals as test of law: several jurists have observed that law must conform to morals, and the law which does not conform to morals must be disobeyed and the government which makes such law should be overthrown. The purpose of the law is do justice.
THEORECTICAL MORALS: The Greeks in the name of the doctrine of natural rights formulated a theoretical moral foundation of law. The Roman jurists in the name of ‘natural law recognised certain moral principles as the basis of law. In the middle Ages, the Church became dominant in Europe. The natural law was given a theological basis and Christian morals were considered as the basis of law.
THE POST REFORMATION OF EUROPE: Modern trends: In the post-Reformation Europe (when the yoke of the Church was thrown off) it was asserted that law and morals are distinct and separate, and law derives its authority from the state and not from the morals.
RELIGION ’MORALS’: Morals have their source in the religion or conscience. However, in the 17th and 18th centuries natural law theories became very popular and, more or less, they had a moral foundation. Law again came to be linked with morals.
THE SOVEREIGN ‘MORALS’: In the 19th century, Austin propounded his theory that the law has nothing to do with the morals. He defined law as the command of the sovereign. He further said that it was law (command) alone which is subject-matter of jurisprudence. Morals are not a subject-matter of study for jurisprudence.
‘THE STUDY OF LAW ‘MORALS’: In the 20th century, Kelsen said that only the legal norms are the subject-matter of jurisprudence. He excluded all other extraneous things including the morals from the study of law. There is a change in trend of thought in modern times.
THE SOCIOLOGICAL APPROACH TO LAW ‘MORALS’: The distinction between law and morals and the forces that influence the development, function and ends of laws studies which extended to various social sciences including morals
THE PRIVY COUNCIL: Decision making always made a distinction between legal and moral injunctions. Law is now being codified.
THE GENIUS OF COMMON LAW: The mix of adaptability and consistency.. When new circumstances arise, common law courts, urged on and educated by the parties to disputes, adapt existing rules in ways that they believe produce the most just and fair outcomes.
COMPARABLE CASES: They look for comparable cases in their own and other jurisdictions to learn what adaptation of existing law will produce the best results. Over time, new doctrines emerge and old ones may die out. But at any given time there is a stable rule‐set people can use to organize their lives and business activities.
COMMON LAW OF PRIVACY: The ‘Right to Privacy’. Law should explicitly protect privacy. n 1960 eminent legal scholar William L. Prosser documented how privacy as a legal concept had come to constitute four distinct torts: intrusion upon seclusion or solitude, or into private affairs; public disclosure of embarrassing private facts; publicity that places a person in a false light in the public eye; and appropriation of name or likeness. The common law of privacy continues to develop and advance
THE MORAL RIGHT TO PRIVACY: This is a fundamental right, essential to autonomy and the protection of human dignity, serving as the foundation upon which many other human rights are built. Thus shields us from the contexts of providing certain freedom and independence- freedom from scrutiny, prejudice, pressure to conform, exploitation, and the judgement of others.
THE INSTRINSIC VALUES ‘MORALS’: Morals look to the intrinsic value of conduct or in other words, they look into motive. Law is concerned with the conduct of the individual for which it lays down standards.
THE SMOOTH RUNNING OF SOCIETY ‘MORALS’: Morals are an end in themselves. They should be followed because they are good in themselves. Law is for the purpose of convenience and expediency, and its chief aim is to help a smooth running of the society.
INDIVIDUAL CONSCIENCE ‘MORALS’: The observance of morals is a matter of individual conscience. Law brings into picture the complete machinery of the state where the individual submits himself to the will of the organised society and is bound to follow its rules.
UNIVERSAL LAW ‘MORALS’: The morals are considered to be of universal value. Law is relative-related to the time and place, and, therefore, it varies from society to society. Law and morals, again, differ in their application. The morals are applied taking into consideration the individual cases whereas the application of law is uniform.
MORAL PRINCIPLES AND LEGAL PERCEPTS: It is said that moral principles are of individual and relative application; they must be applied with reference to circumstances and individuals, whereas legal rules are of general and absolute application.
THE RELATIONSHIP BETWEEN LAW AND MORALS: The distinction between the two, they are very closely related to each other. In considering the relationship between law and morals much will depend on how one defines law. Analytical, Historical, Philosophical and Sociological jurists all have defined law in their own way and these definitions materially differ from each other.
MORALS THE BASIS OF LAW: All the rules originated from the common source, and the sanction behind them was of the same nature (mostly supernatural fear). In the early stages of the society no distinction was made between law and morals.
MORAL’S A TESTS OF LAW: It has been contended by a number of jurists, since very early times, that law must conform to morals. This view was supported by the Greeks and the Romans. In Rome, law to some extent, was made to conform to ‘natural law’ which was based on certain moral principles and as a result ‘jus civil’ was transformed into ‘jus gentium’.
ANCIENT JURISTS ‘NATURAL LAW: Most of the ancient jurists expressed their views in a spirit of compromise and attached sanctity to legal rules and institutions. They said that law, even if it is not in conformity with morals, is valid and binding.
NATURAL LAW ‘MORALS’: During the Dark Ages, Christian Fathers preached forcefully that law conform to Christian morals and said that any law against it is invalid. In the 17th and the 18th centuries, when the ‘natural law’ theory (which was based on certain morals) was at its highest, it was contended that law (positive law) must conform to natural law.
NON-CONFORMITY TO NATURAL LAW: Law which does not conform to natural law is to be disobeyed and the government which makes such law should be overthrown. It was this theory which inspired the French Revolution. In modern times, such views that law must conform to morals and if it is not in conformity with morals, it is not valid and binding are no longer heard. However, in practice to a great extent law conforms to morals.
MORALS AS THE BASIS OF LAW: Many of the modern definitions of law say that the evaluation of interests is a very important test of law. This can be done properly in the context of socially recognised values which in their turn are closely related to morals. Thus, ultimately morals become the end of law. This end has been expressed in the constitutions of many countries. If we look at the preamble of our own Constitution, we shall find that the ends which it endeavours to achieve are the morals; of course, they are the morals of the modern age.
MORALS AT THE END OF LAW: Morals have often been considered to be the end of law. A number of eminent jurists have defined law in terms of, ‘justice’. They say that the aim of ‘law’ is to secure justice. Justice in its popular sense is very much based upon morals. In most of the languages of the world, the words used for law convey an idea of justice and morals also. According to analytical jurists, any study of the ends of law falls beyond the domain of jurisprudence
THE SOCIOLOGICAL APPROACH TO MORALS: Law has always a purpose; it is a means to an end, and this end is the welfare of the society. According to this utilitarian point of view, the immediate end of law is to secure social interests, that is, to secure harmony of claims or demands. It means that the conflicting interests (in the society) should be weighed and evaluated and the interests who can bring greater benefit with the least sacrifice should be recognized and protected.
EVALUATION OF INTERESTS: All becomes a question of choice. In making this choice and in weighing or evaluating interest, whether in legislation or judicial decision, or juristic writing, whether we do it by law making or in the application of law, we must turn to ethics for principles. Morals are an evaluation of interests; law is or at least seeks to be delimitation in accordance therewith.
MORALS AND ‘PUBLIC OPINION’: Greatly influences law is made up of a number of things-political ideas, economic theory, ethical philosophy, etc. These directly and indirectly influence law. Therefore, when so many elements work in shaping the legal precepts, the matter cannot be put in such a simple way as the relation between law and morals, because a number of factors join hands in influencing law, and morals is only one of them. However, some observations can be made about the relation between law and morals.
INFLUENCE OF MORALS ON LAW: Law and morals act and react upon and mould each other. In the name of ‘justice’, ‘equity’, ‘good faith’, and ‘conscience’ morals have in filtered into the fabrics of law. In judicial law making, in the interpretation of legal precepts, in exercising judicial discretion (as in awarding punishment) moral considerations play a very important role.
MORALS WORK AS RESTRAINTS: Upon the power of the legislature because the legislature cannot venture to make a law which is completely against the morals of the society. Secondly, all human conduct and social relations cannot be regulated and governed by law alone. No positivist could deny that these are facts or that the stability of legal systems depends in part upon such types of correspondence with morals. If this is what is meant by the necessary connation of law and morals, its existence should be conceded.
THE GROWING IMPORTANCE OF MORALS: This approach is more concerned with the ends that law has to pursue. Thus, recognised, or, in other words, morals (of course the morals of the modern age) have become a very important subject of study for good law making. On international law also morals are exercising a great influence.
THE NUREMBERG TRIALS: The brutalities and inhuman acts in World Wars made the people to turn back to morals and efforts are being made to establish standards and values which the nations must follow. Perhaps there is no other so forceful ground to justify the Nuremberg Trials as morals. If the law is to remain closer to the life of the people and effective, it must not ignore morals.
MORAL COURAGE: Moral courage is the ability to stand up for and practice that which one considers ethical, moral behaviour when faced with a dilemma, even if it means going against countervailing pressure to do otherwise. It is the ability to stand up for and practice that which one considers ethical, moral behavior when faced with a dilemma, even if it means going against countervailing pressure to do otherwise
Dr. B.N.Tripathi, Jurisprudence Legal theory, (Allahabad Law Agency, Haryana).
Difference between law and morals, https://www.open.edu/openlearn/ocw/mod/oucontent/view.php?id=68341§ion=3.2.
Satoshi Kodama, Bentham’s Distinction between Law and Morality and Its Contemporary Significance-La distinction que fait Bentham entre droit et morale, et son importance actuelle,https://journals.openedition.org/etudes-benthamiennes/6378.
Liam Murphy, The Boundary of Law: Law, Morality, and the Concept of Law, October 28, 2004, https://ethics.harvard.edu/event/boundary-law-law-morality-and-concept-law.
REGULATING MORALITY THROUGH THE COMMON LAW AND EXCLUSIONARY ZONING 2011 https://scholarship.law.edu/cgi/viewcontent.cgi?article=3237&context=lawreview
RESEARCHED BY : CAROL SAKEY WEBSITE: https://wakeupnz.org