Law and Morality

Think of a residential society. Its bye-laws say that parking in the fire lane is fined; no bye-law says you must greet your neighbours or visit a sick friend. Yet everyone knows that ignoring a sick friend is wrong. The bye-laws are like law: written, enforced by an organised authority, concerned mainly with outward conduct. The unwritten code of decency is like morality: it reaches motive and character and is enforced by conscience and the neighbours' opinion. Most bye-laws also make moral sense (do not block the fire lane), which is the overlap. The hard question comes when a majority of residents wants a bye-law against something that harms no one but which they find distasteful. That is the question of the enforcement of morals.

Figure: How far may the law reach into conduct? Four concentric zones: private immorality at the core (legal moralism, which only Devlin would let the law enter), then harm to self (paternalism, contested), then offence (allowed by Feinberg within limits), and an outer ring of harm to others where Mill's harm principle allows the law to act

1. The Meaning and Kinds of Morality

Morality is the body of standards of right and wrong conduct, and of good and bad character, held by a person or a society. Jurisprudence uses three distinctions. Positive morality is the term of John Austin (The Province of Jurisprudence Determined, 1832). For Austin it covered the rules that are not positive law: some are laws properly so called but set by men who are not political superiors (such as the rules of a club), and others are laws improperly so called, set by general opinion (the rules of honour, fashion and international law). Hart later distinguished positive morality, the morality actually accepted and shared by a given social group, from critical morality, the general moral principles used to criticise actual social institutions, including positive morality itself. The Hart-Devlin debate turns on this distinction: Devlin would let law enforce the community's positive morality; Hart asked whether critical morality could justify that enforcement.

2. The Historical Relationship

In early societies law, religion and morality were undivided. In ancient India dharma covered religious duty, moral duty and legal rule alike; in Greece and Rome, and later in medieval Christian thought, human law was measured by a higher natural or divine law (Note 9). The separation began in the seventeenth and eighteenth centuries. Christian Thomasius (1655 to 1728) assigned law to the forum externum, the sphere of outward acts that can be compelled, and morality to the forum internum, the sphere of inner conscience that cannot. Immanuel Kant drew a related line between legality and morality: an action has legality when it merely conforms externally to the law, whatever the motive; it has moral worth only when it is done from duty. A shopkeeper who gives correct change only out of fear of prosecution acts legally but not morally.

Nineteenth-century positivists, Bentham and Austin, insisted on separating law as it is from law as it ought to be, while themselves being keen moral reformers. After the Second World War, the Nazi experience revived the natural law challenge, notably through Radbruch's formula (1946), which Hart then attacked. Roscoe Pound, in Law and Morals (1924), reviewed how the historical, analytical and philosophical jurists had treated the question and showed that morals enter law continually: through legislation, and through the judicial process in interpretation, in filling gaps and in legal standards such as good faith, reasonableness and due care.

3. How Law and Morality Relate

The formula that law is the ethical minimum belongs to the German jurist Georg Jellinek: law enforces only that minimum of morality which a society needs to survive, such as the prohibition of murder, theft and fraud, while morality sets a higher standard that law does not enforce. The idea is useful but incomplete. Much law is morally neutral (driving on the left, filing dates for returns), and some moral duties (gratitude, charity) are left to conscience. The detailed distinctions between the two systems (source, sanction, scope, certainty, internal and external conduct) are set out in Note 50.

4. The Separation Thesis and the Hart-Fuller Debate

The separation thesis is the positivist claim that there is no necessary connection between law and morality: the existence of a law is one thing, its merit another. It does not say that law and morals never coincide, or that wicked laws should be obeyed. In 'Positivism and the Separation of Law and Morals' (71 Harvard Law Review, 1958) Hart defended it, using the grudge informer case, in which a wife who had denounced her husband under Nazi laws in 1944 was convicted after the war (1949). Hart argued that it was more honest to say that the Nazi statute was law but too evil to obey, or to punish her openly by a retrospective law, than to deny that it was law at all, as Radbruch's formula suggested. Lon Fuller, replying in the same volume and later in The Morality of Law (1964), argued that law has an inner morality of eight principles (generality, promulgation, non-retroactivity, clarity, non-contradiction, possibility of compliance, constancy, congruence between official action and declared rule), and that a regime that flouts them wholesale does not produce law at all. The full debate is in Note 65.

5. The Enforcement of Morals: Wolfenden and Devlin

The second debate concerns not the validity of law but its reach. In England the Wolfenden Committee on Homosexual Offences and Prostitution reported in 1957. It recommended that homosexual behaviour between consenting adults in private should no longer be a criminal offence, famously saying that there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business. The recommendation was enacted in the Sexual Offences Act 1967. On prostitution it did not recommend decriminalisation: prostitution itself was not a crime in England, and the Committee recommended stricter penalties for street soliciting, which the Street Offences Act 1959 enacted.

Lord Devlin, a judge of the High Court and later a Law Lord, answered Wolfenden in his Maccabaean Lecture to the British Academy in 1959, published with other essays as The Enforcement of Morals (1965). His argument ran as follows. A society is constituted by a community of ideas, including shared moral ideas about how its members should live. A recognised morality is as necessary to society as a recognised government. So society may use the law to preserve its morality, just as it uses the law against treason and sedition; there can be no theoretical limit to legislation against immorality. The test of what is immoral is the reaction of the ordinary reasonable man, the man in the jury box: conduct that produces genuine feelings of intolerance, indignation and disgust may be punished.

6. Hart's Reply: Law, Liberty and Morality (1963)

Hart replied in Law, Liberty and Morality (1963), drawing on John Stuart Mill's On Liberty (1859). Mill's harm principle states that 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. Hart's main points were these. First, Devlin's disintegration thesis (that a society disintegrates if its shared morality is not enforced) is an empirical claim without evidence; societies change their moral views without collapsing. Second, feelings of disgust are not a sufficient reason to punish: the question is always whether critical morality justifies coercion. Third, punishing harmless private conduct inflicts real suffering on the punished and on those whose lives are driven into secrecy.

Hart was not a pure Millian. He accepted legal paternalism: coercing people for their own good may be justified, and he explained the rule that consent is no defence to murder or serious assault on that ground, citing the modern loss of faith in the idea that individuals always know their own interests best. What he rejected was legal moralism: punishing conduct merely because it is immoral when it harms no one. He also distinguished the punishment of private immorality from the regulation of public indecency, which offends those who witness it. James Fitzjames Stephen, in Liberty, Equality, Fraternity (1873), had earlier attacked Mill from a position close to Devlin's. The debate is compared point by point in Note 66.

Dworkin's critique of Devlin

Ronald Dworkin added a sharper objection. Devlin treated a community's strong feeling as its morality. Dworkin distinguished a genuine moral position, which must be supported by reasons and be consistent, from prejudice, personal emotional reaction, rationalisation based on false facts, and parroting the views of others. A consensus of disgust that cannot survive this test is not a moral position that the law is entitled to enforce.

7. Feinberg's Liberty-Limiting Principles

The American philosopher Joel Feinberg, in his four-volume The Moral Limits of the Criminal Law (1984 to 1988), organised the whole debate into four liberty-limiting principles, each a possible ground for criminal prohibition. The list is Feinberg's; exam questions often attribute it wrongly to Mill or Hart.

8. Constitutional Morality: Two Senses

Indian law now speaks of constitutional morality, and the phrase is used in two senses that must be kept apart. In the first, institutional sense, it comes from the historian George Grote, who described it as a paramount reverence for the forms of the constitution, combined with freedom of criticism and the restraint of those in power. Dr B.R. Ambedkar quoted Grote in the Constituent Assembly in November 1948 and warned that constitutional morality is not a natural sentiment; it has to be cultivated. In this sense it means institutional restraint: fidelity to constitutional processes by office-holders.

In the second, value-based sense, used by the Delhi High Court in Naz Foundation and by the Supreme Court in Navtej Singh Johar and Sabarimala, constitutional morality means the substantive values of the Constitution (liberty, equality, dignity, fraternity, non-discrimination), which override popular or social morality when the two conflict. This second sense is the modern Indian answer to Devlin: the law enforces not the majority's moral feelings but the morality of the Constitution.

9. Indian Law on Morality and the Criminal Law

Obscenity

Attempted suicide, euthanasia and personal choice

Sexual orientation and adultery

Criminal code update: the Bharatiya Nyaya Sanhita, 2023, in force from 1 July 2024, contains no offence of adultery and no provision equivalent to Section 377 IPC for consensual acts between adults.

Religion and constitutional morality

10. Evaluation

Neither extreme holds. A law wholly divorced from morality loses its claim to obedience, as the Nazi experience showed; a law that enforces every moral opinion of the majority crushes liberty and minorities, as the old Section 377 showed. The better position is that law should enforce morality where conduct causes harm to others, may act in limited ways against serious offence and to protect the vulnerable from themselves, but should not punish private conduct merely because the majority finds it immoral. In India, the Constitution supplies the standard: the morality the law may enforce is constitutional morality, not popular feeling.

11. Frequently Asked Questions

Q. What does 'law is the ethical minimum' mean?
A. It is Jellinek's formula: law enforces only the minimum of morality that a society needs in order to survive, such as the prohibition of violence, theft and fraud, while morality sets a higher standard that is left to conscience and social opinion.

Q. Did Hart reject all enforcement of morals?
A. No. Hart rejected legal moralism, the punishment of harmless private conduct merely because it is immoral. He accepted a measure of legal paternalism, such as the rule that consent is no defence to serious harm, and accepted that public indecency may be regulated.

Q. What did the Wolfenden Report recommend?
A. Reporting in 1957, it recommended that homosexual behaviour in private between consenting adults should no longer be criminal (enacted in 1967). It did not recommend decriminalising prostitution, which was not itself a crime, but recommended stricter penalties for street soliciting (Street Offences Act 1959).

Q. What is the difference between the two senses of constitutional morality?
A. The Grote and Ambedkar sense means institutional restraint: reverence for constitutional forms and processes by those in power. The value-based sense, used in Navtej and Sabarimala, means the substantive values of the Constitution, which prevail over popular morality.

See also: Note 9 (natural law), Note 50 (law versus morality), Note 52 (law versus ethics), Note 65 (Hart versus Fuller), Note 66 (Hart versus Devlin).