Positive versus Critical Morality

A family takes a photograph at every Diwali. Over the years the photographs record who sits in front, who serves the food and who eats last. That album is positive morality: a record of what the family actually treats as proper. One year a daughter asks why the women always eat last. She is holding a measuring tape against the practice and asking whether it is fair: that is critical morality, a standard for judging the fact. Note 20 introduces the pair; this note explains where it came from, how it drove the Hart-Devlin debate, and why it matters for Indian constitutional law.

1. Austin's Positive Morality

John Austin, in The Province of Jurisprudence Determined (1832), used positive morality as a residual category for human rules that are not positive law. His scheme split it in two. Some rules are set by men who are not political superiors, such as the rules a club lays down for its members; these are true commands and so laws properly so called, though not positive law. Other rules are set or imposed by general opinion, such as the rules of honour, of fashion and the law between nations; these are laws improperly so called, because no determinate person commands them. Austin accordingly described international law as positive international morality. Note 11 sets out the full classification.

Austin's purpose was to mark the boundary of jurisprudence, not to judge these rules. Positive morality is a fact, posited by human beings just as positive law is. Both could be judged by a further standard; for Austin, a utilitarian, that standard was the principle of utility, which he regarded as the index of the law of God.

2. Hart's Distinction

H.L.A. Hart borrowed Austin's term and gave it a partner. In Law, Liberty and Morality (1963) he distinguished positive morality, the morality actually accepted and shared by a given social group, from the general moral principles used in the criticism of actual social institutions, positive morality included, which he called critical morality. The first is a matter of sociological fact: one discovers it by observing what a group approves, condemns and feels guilty about. The second is a matter of argument: one arrives at it by reasoning about what is right, whatever the group happens to believe.

The distinction has three consequences. First, positive morality can be wrong: a society may sincerely accept rules that critical morality condemns, such as caste exclusion or the subjection of women. Second, critical morality is not a single doctrine. Utilitarians, natural lawyers, Kantians and rights theorists each offer one; what unites them is their evaluative function, not their content. Third, critical morality is not law: for Hart, a positivist, a morally bad rule is still legally valid, but there is reason to reform or even disobey it (Note 65).

3. The Distinction in the Hart-Devlin Debate

The pair was built for a quarrel. Lord Devlin (Maccabaean Lecture, 1959; The Enforcement of Morals, 1965) argued that a society is constituted by its shared morality and may use the law to protect it, taking as its guide the reasonable man in the jury box. On this approach the legislator takes the community's positive morality as he finds it; he is not to impose a philosopher's standard of his own.

Hart answered that the question whether a society is entitled to enforce its positive morality by law cannot be settled by positive morality itself, since that would simply repeat the majority's view. It is a question of critical morality, and Hart's critical morality, drawn from Mill, held that legal punishment causes real suffering and needs justification by harm, not by disgust. He accepted a measure of paternalism but rejected legal moralism. Devlin's position therefore amounts to the enforcement of positive morality; Hart's to the scrutiny of positive morality by critical principles. Note 66 sets out the debate in full.

4. Bentham's Parallel: Expository and Censorial

Long before Hart, Jeremy Bentham drew the same line for law. In A Fragment on Government (1776) he distinguished the Expositor, who explains what the law is, from the Censor, who says what it ought to be. Expository jurisprudence describes; censorial jurisprudence evaluates, and for Bentham its standard was utility (Note 1). His motto for the good citizen under a government of laws was to obey punctually and to censure freely.

The parallel is exact. Expository jurisprudence stands to positive law as the description of positive morality stands to morality: both report what is accepted. Censorial jurisprudence stands to positive law as critical morality stands to positive morality: both judge what is accepted by a higher standard. Bentham, Austin and Hart separated law as it is from law as it ought to be precisely so that criticism could be clear (Note 55).

5. Indian Illustrations: When Positive Morality Was Wrong

Indian social history supplies the clearest examples of positive morality condemned by critical morality. Sati was accepted and even honoured in parts of society; Raja Ram Mohan Roy's campaign, argued on grounds of humanity and scriptural interpretation, led to the Bengal Sati Regulation of 1829 under Lord William Bentinck. After the Roop Kanwar case at Deorala in Rajasthan (1987), Parliament enacted the Commission of Sati (Prevention) Act 1987, which also punishes its glorification. Widow remarriage (1856) and child marriage (1929) laws followed the same path.

Untouchability and caste exclusion were long embedded in the positive morality of large parts of Hindu society, enforced by social boycott rather than by the State. Critical morality, pressed by reformers and above all by Ambedkar in Annihilation of Caste (1936), condemned them. The Constitution then adopted that critical verdict. Art. 17 abolishes untouchability, forbids its practice in any form and makes the enforcement of any disability arising from it an offence; Parliament followed with the Untouchability (Offences) Act 1955, renamed the Protection of Civil Rights Act, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.

Critical morality works on positive morality through argument, reform movements, legislation and, finally, change in what the group itself accepts; the danger is that change stops at the statute book (Note 111).

6. Relation to Constitutional Morality

Indian constitutional morality (Note 134) is best understood as critical morality given constitutional form. The Constitution selected certain critical principles, namely dignity, liberty, equality, fraternity and pluralism, and entrenched them against the positive morality of any passing majority. This gives the Indian judge an advantage Hart's critic lacked: when the Court sets aside a law based on positive morality, it applies law, not personal ethics. It also sets a limit. Constitutional morality is not the whole of critical morality; it is only that part which the Constitution has adopted, so a judge may not import a moral theory the text does not support.

The same approach appears in Joseph Shine (2018), where a patriarchal positive morality about wives was rejected, and in S. Khushboo v Kanniammal (2010), where the Court held that notions of social morality are subjective and that the criminal law is not meant to punish views that merely offend the majority (Note 20). In Anuj Garg v Hotel Association of India (2008) the Court struck down a colonial-era bar on employing women in premises where liquor was served, holding that protective laws resting on stereotyped assumptions about women's roles cannot survive equality review.

7. Evaluation

The distinction is one of the most useful tools in legal philosophy. It explains moral progress, which would be impossible if morality were only what a group accepts. It lets a positivist call an unjust law law and still condemn it, and it exposes Devlin's move from the fact that a morality is shared to the conclusion that it may be enforced.

It also has limits. Critical morality is plural and contested: reformers and their opponents both claim it, and the question whose critical morality should govern has no neutral answer. Critical principles can become elitist if a few claim to know better than the many without persuading them. And positive morality is not always wrong: much of it, such as honesty and care for the vulnerable, survives critical scrutiny and gives law its stability. The better view is that the two are in constant dialogue. In India the Constitution supplies a publicly agreed critical standard, which reduces, though it does not remove, the risk that critical morality becomes merely the preference of the critic.

8. Frequently Asked Questions

Q. Is critical morality the same as natural law?
A. No. Natural law is one possible critical morality, but critical morality also includes utilitarian, Kantian and rights-based standards. Hart used critical morality to judge law without claiming, as natural lawyers do, that an immoral rule ceases to be law.

Q. Why did Hart say that the enforcement of positive morality raises a question of critical morality?
A. Because a society's acceptance of a moral rule does not show that it is entitled to punish those who break it. That question must be answered by principles that can criticise the accepted morality itself, otherwise the majority's view would justify its own enforcement.

See also: Note 1 (meaning of jurisprudence), Note 11 (analytical school), Note 20 (law and morality), Note 55 (natural law versus positivism), Note 66 (Hart versus Devlin), Note 134 (constitutional versus public morality).