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Imagine a police officer catches a thief red-handed. Upon further investigation, the thief turns out to be a broke college student who stole to pay his tuition fee. Punishing him with jail time would likely ruin his career, snatching away from him the opportunity to live a better life. The burning question that arises here: is it morally acceptable to put a student in jail who was stealing to pay for his education? Or should a thief be allowed to walk free based on moral values?
This is what the war between legality and morality is all about. For some, these two are akin to parallel lines—they should never intersect—while others believe that law and morality go hand in hand and are, ultimately, related. Read on to find out: is law linked to morality?
What is law and morality?
Morality: The ability of human conscience to separate good from bad. Moral values are a code of conduct that is followed by a group, society or an individual. For example, according to society, lying is an immoral act.
The million-dollar question: Is law related to morality?
The debate between law and morality is an old one and remains, to this day, a controversy.
The Analytical School of Law and Positivist theory:
The analytical school of law is based upon the relation of law to a sovereign state. The state exercises power and does not follow any other authority. This school of law is not concerned with whether the law is good or bad. Important authors of the analytical school of law are Jeremy Bentham, John Austin, Hart, Kelson, Holland, and many more.
John Austin, also known as the father of the analytical school of law stated, “Law is a command of the sovereign backed by the threat of sanction”. Here he means that the law is the command of an authoritative state, and disobedience of the law can result in punishment.
Positivist Theory: The works of prominent authors within the analytical school of thought took the form of positivism. According to positivists, only the laws written down and made by an authoritative government are legitimate. They do not view laws in accordance with moral values. A law is a law if it is made by proper authority; it does not matter if someone likes or dislikes it.
The Natural School of Law and Naturalist theory:
The important exponents of the natural school of law include Plato, Aristotle, Thomas Hobbes, Immanuel Kant, and many more. This school of law is based upon the relation of law to morality. Laws should be made according to moral and ethical values. Even if they are not made by a government but considered, instead, as something largely agreed upon, it will come under natural law. The belief that all human beings should live a life of dignity is an example of natural law. The sources of natural law are God, Nature, and Reason.
Naturalist Theory: This theory suggests that laws should be made based on moral values.
The Hart-Davlin Debate:
According to Patrick Davlin, there is no society without common morality. The common sense and the ability to differentiate the good from the bad is present in every human being. Thus, laws should be made according to moral values. He believed that a society without morality would disintegrate. Hence, acts that he considered to be immoral, such as abortion, homosexuality, fornication, and prostitution should be made illegal.
H.L.A Hart, on the other hand, believed that laws should not affect the private lives of people. According to him, not every act considered to be immoral should be punishable. Abortion, homosexuality, and prostitution may be considered as immoral to some, but they are ultimately related to the private lives of people.
The Final Verdict:
Pro: Naturalist law is not written down. Therefore, it is easy to act upon what we know is right.
Con: Every human being has a different set of moral values. One person may think something is right, while another person may think it is wrong. Even though moral values differentiate between good and bad, they are quite uncertain. For example, all human beings have the right to live with dignity. What is meant by dignity here? What is its definition in this context?
Pro: Positivist law has a certainty to it. It can be understood easily— in the way it exists in legal texts.
Con: Separating law from morals can lead to morally questionable laws. There are many examples of such laws. For example, the laws enacted during the reign of Adolf Hitler were immoral to a great extent. The Nazis enacted laws against German Jews and, by the end of world war II, 6 million people were dead as a result of these laws. Thus, adopting a positivistic approach may allow the enacting of immoral laws that harm people instead of protecting them.
Laws and morals may be different from each other, but they have the same purpose: to safeguard the rights of people and to protect them from harm.