Question: Nimisha James
Now we see the law accepts many things that seems to be against morality. But some say what is legal need not be moral. How is then law and morality are connected?
Answer: Saji Mathew Kanayankal CST
The relationship between law and morality is an age-old question and we had a lot of discussions about it. However, the question gets our attention once again in the present context of India where we have been experiencing a lot of changes in the social, political and religious spheres, especially in the last few years. What we considered as crimes previously became legal and what we had thought of legal became illegal now. For example, slaughtering cow was not at all a crime in many parts of our country till some years back and the same way, the citizens of the country were free to accept any religion according to their choice. Recent years, we had the examples of anti-conversion bill or the bills banning slaughter of the cow and so on. With the decriminalisation of homosexuality and adultery by the Supreme Court, we are again in a puzzled situation and many claim that what the legal system approves can be morally accepted.
There is a prevailing opinion that the law exists to promote morality so that human beings may able to lead a sober and serene life in the society. However, some legalists would say that the law is absolutely independent of morality and it is not necessary that the morality of the society is to be related with the laws. While others would argue that in a multi-cultural/religious/linguistic society like India, there should be a clear distinction between the morals of the society, which may vary depending on different religious and ethnical groups with their own distinctive cultures and customs and the legal system, which should be based on the constitution of the county.
LAW: THE SAFEGUARD OF SOCIETY
It should be noted that in the ancient and medieval periods law and morality were seen as the two sides of one coin without clear distinction between both of them. For example, in Hindu law, the primary sources were Vedas and Smritis, the Greeksfounded it on the ‘doctrine of natural right’ and for the medieval Europe, it was the ‘natural law,’ which was also the basis of Christian ethics. We can see some passages in Greek literature stating that a good person is one who does what is lawful. However, in the course of time we can see a clear departure of the laws from the religious or societal ethos.
The law is classically defined as the “ordinance of reason for the common good, made by him who has care of the community and promulgated” (Summa Theologiae, I-II, q90, a4). In his further analysis, Thomas Aquinas makes different kinds of laws such as eternal, divine, natural, human etc. When we speak about the law now, generally it refers to the positive law, the laws which are made by a competent authority for the welfare of a particular society. Every society comes into existence with a purpose and it is the responsibility of the one who has the authority to safeguard it. In fact, the welfare of an individual will be actualised only through a systematic and regulative system in a society and thus the laws reflect the sociological purpose of the society. In this background, laws, that determines the rights and duties of the citizens towards one another and towards the state, can be seen as the enactment made by the state to realise its purpose. Therefore, the laws can be considered as a code of rules, deriving from an authority with an obligatory nature whose violation results punishments or penalties. Law, as Justice Oliver Homes defines, is “a statement of the circumstances in which the public force will be brought to bear upon men through the courts.” (Collected Legal Papers: Ideals and Doubts, 306). The definition of the law given in the Oxford Dictionary also resonates the same; law is “the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties.”
It is to be noted that the human laws which are promulgated by the concerning authorities are bound to the demands of the community. Sometimes it is made with vested interests and thus can contradict common good or welfare of the entire society. Aquinas would say that “if in any point it deflects from the law of nature, it is no longer a law but a perversion of law” (Summa Theologiae, I-II q95, a2). It may further cause the oppression of its subjects, especially the weaker sections and minority and the disintegration of the society.
Though it controls and regulates the external conduct of an individual, the law cannot understand and judge the inner motivation or intention of the act of a particular individual. An individual with a bad intention in his mind may act virtuously, but the law does not care for it. However, the law will move into action, when an act harms another person or the society.
MORALITY: THE INTERIOR POWER
While the law is concerned with the external affairs of a human being, morality deals with the internal dimension, for it is the expression of the very core of the beliefs and the convictions of a person. The origin of the word moral is from the Latin mos, which means ‘custom’ or ‘usage.’ The ancient Greek philosophers, while struggling with the fundamental question to attain well-being, found their answer on human teleology, i.e., every human being is ordered toward an ultimate end. The ethical quest was in a way to determine with the question of how best can one live and act so as to reach his/her telos or end. Thus, the idea of values became the crux of the moral system, and ‘morals’ is referred to a body of accepted conduct systems of precepts in terms of aims, ends, and results. In his/her conduct, each person reflects the meaningfulness of his/her life with the point of reference on goodness which is inherited as the values and principles from different sources of his/her life. While discussing on the moral and legal dimensions, Immanuel Kant makes a distinction between the inner and outer self of a human being. According to him, human being’s acts have two-fold aspects. On the one hand, s/he is in relation to other beings like himself and to external things. On the other hand, s/he is alone with him/herself. The law has to do with his/her acts in the external aspect and the morals have to do with the internal self.
Christian tradition, following the theology of Thomas Aquinas, affirms that the human being has the capacity to participate in the eternal law of God by his/her reason and therefore human reason stands as the proximate norm of morality and eternal law stands as its ultimate norm. By the very fact of being created in the image and likeness of God, the divine intelligence is inscribed into his/her heart and one can reach into the moral principles with the help of reason that is inbuilt in him/her along with the creation. In a profound way, a Christian believer imbibes the values for his moral life from the scripture, traditions and human experiences. Even though the human experiences have a significant role in the formation of the ethics of a person, an authentic Christian cannot make it apart from his/her faith. For a Christian, morality is not an exclusive behaviour guided by certain rules or principles or certain customs or habit, rather it is an expression of his/her basic faith. More than the external behaviour or keeping up certain laws or rules, it deals with the interiority of a person and therefore it can be seen as the cultivation of certain values, attitudes, outlooks and virtues. In that way an authentic Christian would try to answer to the fundamental and ethical questions; “What sort of person I should become because I believe in Christ?” and “What kind of act should I do because I believe in Jesus Christ?”
Keeping these in mind when we make an analysis on law and morality, we can have the following conclusions. Although the dichotomy between law and morality is not radical, there is a clear distinction between both. Laws, which are enforced by the state, deals with the external act of a person and violation of which has an immediate external impact as punishment, whereas morality is concerned with the internal dimension of a person. Law out lines only a basic standard of behaviour necessary for the good function of the social institutions whereas morality tries to create a private space, where individuals can live according to their ethical beliefs without harming the common good.Conventional morality would be a body of conduct approved by the custom or beliefs of the group of which the individual is a member. The persons who are outside the particular group need not consider a particular act as moral or immoral.
Eventhough the aim of law is to keep order and regulation in the society, some human laws can be the outcome of the narrow-mindedness of the authority at a particular time. It is not necessary that the human made laws would prohibit all vices nor command all virtues and there is a possibility of applying some unethical principles in promulgating it. Though as the citizens of a country we are bound to obey its law, it is not necessary that we have to accept it morally. An upright human person can stand for his/her convictions by confronting some unethical laws and wilfully accepting its consequences with the virtue of fortitude. There are things which are not illegal but are unacceptable to morality and in the same way there are certain things which are illegal but may not be immoral. For example, eating meat is immoral for many people in India, but for many others it is a normal food. In the same way, when the Supreme Court says that adultery in married life or homosexuality between adults is not a criminal offence, it does not mean that it is a morally right act and all should accept it. It simply means that from a legal point of view, it is not a criminal act, however, an individual is free to accept or reject it, based on his/her personal convictions and faith experience.