Law and Morality

LAW AND MORALITY LAW AND MORALITY By Taki Ahmed Khan of Lincoln's Inn, Barrister at Law Study of jurisprudence divides the students in two opposing camps. One group holds that law is a technique based on specific rules framed for the social ordering which may be employed for good or bad purpose. To prove their point of view they liken the law to a knife which can be used both for lawful and unlawful purposes. The advocates of this concept of law argue that to import morality in law would confuse the concept and open the ways for individual idiosyncrasies. For don't you see, they say, that notions of morality are different with different ethnic groups. Dictators who are motivated by self-interest to prolong their despotic rule even by use of torture use the officials serving under them to enforce the laws framed by them. Those who do not comply with the rules framed by the despots are punished by the courts of the regime as would be those who disobey the laws enacted by the regime established under the law. Furthermore, the tyrants never discard the idea of the rule of law; rather they loudly claim their rule is the rule of law. It is an old adage that law is the will of the sovereign and is shorn of any moral contents. If sovereign legislature enacts that everyone with red hair is to be executed, the courts have no option but to enforce the law and hang every individual with red hair. In case the Judges are intransigent the sovereign can remove them and bring more compliant Judges in their place. Law is a handmaid of the power which has control of coercive mechanism. The proponents of the idea that law is without any moral appendage are called positivist. They include such big names as Thomas Hobbs (1588-1579), John Austin (1790-1859), Hans Kelson (1881-1973), H.L.A Hart, Mathew Kramer. It was John Austin who gave definition of law in 1832 (which separates law and morality) "that propositions of legal duties are statements about the probability of suffering a sanction in certain circumstances", which held sway in 19th and large part of 20th century. Our laws enacted by the British in the second half of 20th century carry the imprint of Austinian philosophy of law. They theory of positivism is also a favourite idea of autocratic regimes. In Zafar Ali Shah's case (PLD 2000 SC 869) our Supreme Court widely borrowed from Hans Kelsen's theory of grundnorm to justify the tyrannical rules of General Musharraf. The second group of jurists who are called moralists include Aristotle (384-322 B.C), Thomas Acquinas (1225-1274), Immanuel Kant (1724-1804), Lon. L. Fuller (1902-1978), Jhon Finnis, Reynold Dworkin who hold that natural law is immanent in human beings in the form of conscience. It is present in human interaction with fellow human beings which produce rules for peaceful living. These rules in time harden into rules of morality. According to Immanuel Kant:-- "it is possible to conceive a system containing only positive laws but a natural law will still have to precede it which would establish the authority of the law giver." The law is, however, different from the laws such as obligations, negligence, tort, contract etc, which occupy most of the court time. The law is repertoire of laws; subsumes all laws; it is the fountain head of all laws. Aristotle writing in the 4th century B.C. said that purpose/of law is nourishment of human society; it is an instrument for the social well being; it is like cement which strengthens the social fabric. Thus the concept of law is value-ridden. It is a moral concept. The dictatorial regimes too enact laws but the lynchpin of those enactments is self interest, i.e. to prolong their hold on power and to suppress the opposition. Fundamental concepts of law, the liberty of citizens is curtailed, their conduct is watched and even small deviations from regime's direction and brutally punished. Such regimes may have laws but it lacks moral claim of power and are thus not lawful. A knife is a knife but if it lacks the essential quality of a knife in that it is not sharp for use, it cannot be called a knife. A regime which fails to protect its citizens' life and liberty may be lawful in name but since it is wanting in morality of law, its rule is not lawful. The unlawful regimes enact law which violate the human freedom and dignity. They cow down the judges to enforce those laws. Their laws are arbitrary and the punishments are harsh. In order to thwart attempts at arbitrariness, which is negation of the rule of law, Lon. L. Fuller has framed eight principles for the governance of the human conduct which determine whether the country is run by the rule of law or arbitrariness. These precepts or desiderata are as under:- (i) There must be rules. (ii) Rules must be published. (iii) Rules must be prospective. (iv) Rules must be intelligible. (v) Rules must be free from conflict and contradiction. (vi) It should be possible to comply with rules. (vii) Rules must not be constantly changed. (viii) There should be congruence between the declared rule and official action. The above precepts are favoured both by positivists and moralists.