(Photo: Thought and action)

Rule of Law is the fundamental principle which ensures good governance as well as individual rights and liberties. It says no one is above the law and every person living in a particular society is subject to the law of that society. All other notions associated with the rule of law must also be considered alongside it. It is a mechanism that encourage the equality of all citizens before the law. It also secures a non-arbitrary form of government, and specifically prevents the arbitrary use of power. In general, the rule of law implies that the creation of laws, their enforcement, and the relationships among legal rules are themselves legally regulated, so that no one including the most highly placed official is above the law.

Morality is a concept that distinguishes right from wrong. It also talks about conduct that is considered acceptable or unacceptable in a particular society. The source of morality is usually considered to be natural law and God’s instructions through sacred documents.

Morals provide a basis for the development of law by virtue of justice, equity, good faith, and conscience. Morality plays an important role in making of law and its interpretation. Morals are an intrinsic part of the laws. In the ancient time morals and laws were considered as one and the same. In the current period though law and morality have several distinctions yet the same are not completely different or distinct. A relationship can be established between morality and law on three grounds: -

1)     morals as the basis of law

2)      morals as test of positive law

3)      morals as the end of law.

According to Stammer “jurisprudence depends much upon moral ideas as just law has a need of ethical doctrine for its complete realization. Positive law and just law correspond to positive morality and rationally grounded ethics. There's no difference and if any, it is only the difference of manner in which the desire for justice present itself”.

H.L.A Hart believes that there are several relations between law and morals. He was of the view that a legal system must exhibit some specific conformity with morality or justice or must rest on a widely diffused conviction that there is a moral obligation to obey it.

Ronald Dworkin has argued that both laws and constitutions are unavoidably rooted in political and moral principles. The law is not derived logically from accepted true moral principles. Rather, it is established by legislatures that come to agreement on public rules that are shaped by a political consensus about right and wrong.

Rule of law prioritizes the supremacy of law whereas morality prioritizes the moral values and consciences of the subjects of the state. For instance, a man is under no duty to help a beggar or the distressed and can neglect his sick and old parents without the fear of any legal or penal consequences, but morality does not allow a person to do so as it amounted to undesirable conduct condemned by morals and ethics. There is a close relation between the rule of law and morality.  Morality complements the rule of law. But it is a casual relationship, as laws are not made out of moral principles, rather, they are established and shaped by a “legal consensus of right and wrong”. Even though morality is ultimately involved in making and modifying the law, it is never legally binding and does not have constitutional value.  Laws have a marginal origin from the morals and ethics derived in the society which initially monitored the conduct of people, but morality solely cannot be the basis on which law has been derived. An acceptable statement is that both morality as well as rule of law have adapted to the development of society. Sometimes what seems right from the morality point of view may be contrary when viewed from the point of rule of law.  For instance, when a person tries to feed a needy person, by means of theft solely for the purpose of feeding that needy person, morally the act may be justified yet the same may not be the case under rule of law. Because under the concept of rule of law, a person has committed. Therefore, morality has a marginal presence in rule of law whereas it is highly contradictory of the same.

Morality in Rule of Law with reference to H.L.A. Hart theory

Professor Herbert Lionel Adolphus Hart (H.L.A. Hart) is an influential legal professor. Hart revolutionized the methods of jurisprudence and the philosophy of law. He authored ‘The Concept of Law’ and made major contributions to political philosophy. Law can be analyzed in terms of rules which is largely based on Hart’s theory of law. According to him, rules are concerned not with what happens but with what is to be done. Rules are imperative or prescriptive rather than indicative or descriptive. Rules have a certain independence or self-legitimating character. Rules are different from commands. Commands normally call for one unique performance whereas rules have a general application and demands repeated activity. According to Hart, ‘Law consists of rules which are of broad application and non-optional character, but which are at the same time amenable to formalization, legislation and adjudication. According to Hart the law consists of primary and secondary rules. Primary rules are duty imposing rules on the citizens and have a legal sanction. Secondary rules are power conferring laws that describe how laws should be recognized, adjudicated or changed. Hart says these rules form the heart of the legal system.

Hart's version of natural law is empirical. His position is based on a theory of human nature which believes in certain truisms. For example, Hart believes that one truism of human nature is that the overwhelming majority of human beings wish to survive. It means they would rather live than die. If one wish to survive, it is imperative that a society be developed which will help ensure survival. Hart believes there are five features of the human condition which sometimes work against survival, and the legal system must take these into account.  Hart believes that: -

  •      there is the feature of human vulnerability.
  • .     there is the Hobbesian notion of approximate equality.
  • .      human beings possess at best a limited altruism.
  • .      the concept of limited resources governs our actions.
  • .     the idea of limited understanding and strength of will is important to any society.
     Conclusion
    The fundamental principle which ensures good governance as well as individual rights and liberties is the rule of law under which no one is above the law and every person living in a particular society is subject to the law of that society.  Morality, on the other hand, is concept that distinguishes right from wrong and may refer to conduct that is considered acceptable or unacceptable in a particular society.  Coercion and sanction may be important considerations but not the basic elements to make law work. The law is meant to facilitate. It is mechanism that resolves conflicts of interest among individuals. This idea of law brings us to the concept of rule of law which aims to treat every individual equally, irrespective of social status. Under the rule of law, individuals are protected from the element of coercion. Another element of the rule of law is equality, which is often confused with generality. Laws are based on generality and bind everyone, not any singular group. But equality here means that every individual is subject to the same law and procedures and has the same rights. A close relation exists between the rule of law and morality, since morality complements the rule of law. But it should still be considered a casual relationship, as laws are not made out of moral principles, rather, they are established and shaped by a “legal consensus of right and wrong”

About Simran Saluja

This is a short description in the author block about the author. You edit it by entering text in the "Biographical Info" field in the user admin panel.

0 Comments :

Post a Comment

Note: Only a member of this blog may post a comment.