Law and Morality

The central question is whether there is a necessary connection between law and morality and, a separate question, whether the law should enforce morality. Examiners test (a) which school takes which view, (b) the Hart–Devlin and Hart–Fuller debates, and (c) Indian cases in which 'constitutional morality' was set against 'public' or 'social' morality.

Key terms:

• Positive (or conventional) morality: the moral beliefs actually held by a society.

• Critical (or ideal) morality: the moral principles by which social practices, including law, can be criticised (Hart's terms).

• Legal moralism: the view that conduct may be legally prohibited simply because it is immoral (Devlin).

• Legal paternalism: the law may restrict a person's liberty for the person's own good (for example seat-belt laws).

• Harm principle: the law may restrict liberty only to prevent harm to others (Mill).

• Offence principle: the law may prohibit conduct that is seriously offensive to others even if not harmful (Joel Feinberg, The Moral Limits of the Criminal Law, four volumes, 1984 to 1988: Harm to Others, Offense to Others, Harm to Self, Harmless Wrongdoing).

• Constitutional morality: adherence to the core values of the Constitution (liberty, equality, dignity, fraternity, rule of law) as against popular or majoritarian morality.

Where they overlap: crimes such as murder, theft and fraud; duty of care in tort; good faith in contract; maintenance and child-protection laws. Where law is morally neutral: traffic rules, limitation periods, company formalities.

• Natural law: a necessary connection. An unjust law lacks full legal status (Augustine, Aquinas, Radbruch, Fuller, Finnis).

• Analytical positivism: separation thesis. Austin: 'The existence of law is one thing; its merit or demerit is another.' Hart accepts a minimum content of natural law but insists on conceptual separation. Raz: strict source thesis.

• Kelsen: the validity of law is independent of morality; justice is an irrational ideal outside legal science.

• Historical school: law and morality both come from the Volksgeist.

• Sociological school: law serves social interests which include morals (Pound listed 'general morals' as a social interest).

• Realists: morality matters only in so far as it influences judges.

• Marxists: both are ideological reflections of the economic order.

• Dworkin: law includes moral principles; the best interpretation of legal practice involves moral judgment (law as integrity).

• Fuller: the internal morality of law (the eight desiderata) is the necessary morality of legality, and law has a moral dimension essential to its existence.

• Hart's description: the existence of law is a matter of fact; but it is the minimum content of natural law, the union of rules and the internal point of view that links law to morality in practice.

See Topic 2.2 for the details of the informer case. In outline:

• Hart, 'Positivism and the Separation of Law and Morals' (Harvard Law Review, 1958): even an evil rule may be law; the right response is to say 'this is law, but too evil to be obeyed', so as to keep moral criticism honest.

• Fuller, 'Positivism and Fidelity to Law: A Reply to Professor Hart' (1958): the internal morality of law; the idea of law cannot be separated from the idea of fidelity to law, and a system of extreme injustice cannot be law.

• Outcome: both views remain influential; many cite the Radbruch formula as a middle position.

Background: the Wolfenden Report (1957). The Committee on Homosexual Offences and Prostitution, chaired by Sir John Wolfenden, recommended that homosexual behaviour between consenting adults in private should no longer be a criminal offence. It said the function of criminal law is to preserve public order and protect citizens from what is offensive or injurious, and 'there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business.' It was implemented by the Sexual Offences Act 1967 (England and Wales).

Lord Patrick Devlin (The Enforcement of Morals, the Maccabaean Lecture, 1959):

• Society is held together by a shared morality; a society has a right to protect itself from threats, including moral threats, just as against treason. The suppression of vice is as much the law's business as the suppression of subversive activities.

• Disintegration thesis: if society's shared morality is flouted, society may disintegrate; hence the law may punish immorality as such.

• The test of the reasonable man (the 'man in the jury box' or 'man on the Clapham omnibus'): the limits of tolerance are those of the right-minded person. The marks of a public morality are 'intolerance, indignation and disgust'. Where there is a real feeling of 'reprobation', the law may act, but it must always have regard for the privacy of the individual, and tolerate as much as is consistent with the integrity of society.

H.L.A. Hart (Law, Liberty and Morality, 1963; The Morality of the Criminal Law, 1965):

• Rejects the disintegration thesis as lacking empirical evidence: society does not disintegrate because of changes in sexual morality; the idea that a change in morality is like treason is incorrect.

• Distinguishes positive morality from critical morality. Devlin's argument, Hart says, confuses social acceptance with moral rightness. Mere moral outrage, disgust and intolerance cannot justify the use of criminal law.

• Supports Mill's harm principle, while recognising certain justifiable cases of paternalism (for example, to protect people from exploitation or when consent is unreal).

• Called Devlin's view 'a moral populism', and said that to enforce morality merely because it is shared is an unjustified form of moral tyranny of the majority.

• Also noted that the Wolfenden position was consistent with utilitarian liberalism.

Other contributions:

• J.S. Mill, On Liberty (1859): the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.

• James Fitzjames Stephen (Liberty, Equality, Fraternity, 1873): an early critic of Mill who argued that law may enforce morality; Devlin's views are close to his.

• Ronald Dworkin ('Lord Devlin and the Enforcement of Morals', Yale Law Journal, 1966) criticised Devlin for treating popular reaction as the same as moral conviction.

Case law (English and American) often used as illustrations:

• Shaw v DPP (1962): the House of Lords recognised a common-law offence of conspiracy to corrupt public morals (the 'Ladies' Directory' case), accepted by commentators as Devlin's view in action.

• Knuller v DPP (1973): the Lords reaffirmed the offence of outraging public decency.

• R v Brown (1993): the Lords upheld convictions for consensual sadomasochistic acts (a paternalism and public-morality case); the Mill and Hart view would have favoured the defendants.

• Bowers v Hardwick (1986, US Supreme Court) upheld a Georgia sodomy law, but this was overruled by Lawrence v Texas (2003), which emphasised liberty and privacy.

• Obergefell v Hodges (2015, US) recognised same-sex marriage.

The Indian Supreme Court's recent judgments have been drawn on repeatedly in questions. Learn the name, year, and the one-line holding.

(a) Homosexuality and Section 377 IPC

• Naz Foundation v Government of NCT of Delhi (2009): the Delhi High Court (A.P. Shah CJ) read down Section 377 IPC to exclude consensual adult sexual acts in private; it relied on constitutional morality and said popular morality or public disapproval cannot justify limits on fundamental rights.

• Suresh Kumar Koushal v Naz Foundation (2013): the Supreme Court reversed that decision, holding that the question was for Parliament and that LGBT persons were a 'miniscule fraction'.

• National Legal Services Authority (NALSA) v Union of India (2014): recognised the right of transgender persons to self-identify their gender and held that they are entitled to fundamental rights, and are a 'third gender'.

• K.S. Puttaswamy v Union of India (2017): a nine-judge bench unanimously held that privacy is a fundamental right under Article 21 (and Part III as a whole), overruling M.P. Sharma (1954) and Kharak Singh (1962) in part.

• Navtej Singh Johar v Union of India (2018): a five-judge Constitution Bench read down Section 377 and decriminalised consensual same-sex acts between adults, overruling Koushal. It emphasised constitutional morality over social morality, dignity, and the transformative character of the Constitution. Bestiality and non-consensual acts remain punishable.

• Note: the Bharatiya Nyaya Sanhita, 2023 (in force from 1 July 2024) has replaced the IPC and has no counterpart of Section 377; check the statutory mapping if the exam gives section-numbered questions.

(b) Adultery: Joseph Shine v Union of India (2018): Section 497 IPC (adultery) was struck down as violating Articles 14, 15 and 21; it treated a wife as the property of the husband and was based on outdated morality.

(c) Religion, gender and constitutional morality

• Indian Young Lawyers Association v State of Kerala (Sabarimala) (2018): by a 4:1 majority, the Court held the exclusion of women of menstruating age from the Sabarimala temple violated Articles 14, 15, 17 and 25; constitutional morality must prevail over religious practices that violate dignity. Justice Indu Malhotra dissented, saying courts should not interfere with essential religious practices.

• Kantaru Rajeevaru v Indian Young Lawyers Association (2020): review petitions were referred to a larger bench to consider the broader questions of the scope of religious freedom and essential religious practices. (Check the latest status of the nine-judge bench.)

• Shayara Bano v Union of India (2017): by 3:2 the Court struck down instant triple talaq (talaq-e-biddat) as arbitrary and unconstitutional.

(d) Obscenity and public morality (Section 292 IPC, now Section 294 BNS)

• Ranjit D. Udeshi v State of Maharashtra (1965): adopted the English Hicklin test (R v Hicklin, 1868), asking whether the material tends to deprave and corrupt those whose minds are open to such immoral influences.

• K.A. Abbas v Union of India (1970): on censorship of films, upheld pre-censorship as a reasonable restriction.

• Bobby Art International v Om Pal Singh Hoon (1996): Bandit Queen; the context and the message of the film matter.

• Aveek Sarkar v State of West Bengal (2014): rejected the Hicklin test and adopted the 'community standards' test (from the US Roth approach), holding that a picture of Boris Becker with his fiancee, published for an anti-racism message, was not obscene.

(e) Dignity, death and autonomy

• Aruna Shanbaug v Union of India (2011): allowed passive euthanasia under judicial supervision.

• Common Cause v Union of India (2018): recognised the right to die with dignity under Article 21 and allowed 'living wills' (advance directives) with safeguards.

(f) Constitutional morality in other contexts: Manoj Narula v Union of India (2014) on appointment of tainted persons as ministers, where the Court explained constitutional morality as conformity with the norms of the Constitution; the concept was invoked by Dr B.R. Ambedkar in the Constituent Assembly (borrowing from the historian George Grote) as the 'effective co-ordination between conflicting interests'; it is not a natural sentiment and must be cultivated.

• Law and religion: historically fused (Dharma, Sharia, canon law); modern states separate them, though personal laws persist (Article 25 and the debate on the Uniform Civil Code under Article 44).

• Law and ethics of profession: Bar Council rules on professional misconduct.

• Law and justice: justice is a moral value that law aims to achieve; for Aristotle, justice includes distributive and corrective aspects; for Kelsen, justice is outside the 'pure' science; for Rawls, justice is 'the first virtue of social institutions'.

• Civil disobedience (Thoreau; Gandhi's Satyagraha; Rawls, Dworkin): the claim that an unjust law may justify non-violent, public, conscientious breach.