1. Morality and Law
Siddharth Agarwal | Y7429
November 6, 2009
1 Acknowledgements 1
2 Introduc on 2
3 The Philosophy of Law 2
4 Legal Theories 3
4.1 Natural Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4.2 Legal Posi vism . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5 Judicial Review 6
5.1 Roe v. Wade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.2 From natural law . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.3 From legal posi vism . . . . . . . . . . . . . . . . . . . . . . . . 8
6 Personal claim 9
6.1 Objec ons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7 More Ques ons in Jurisprudence 10
I would like to thank Prof. Vineet Sahu for oﬀering this course on ethics and so-
ciety, and thus giving me a change to go deep into this topic. I would also like
2. to thank T.V. Raziman for several spirited discussions on this topic, all of which
helped reﬁne my personal posi on.
My ini al interest in the connec on between morality and law came from the
landmark judgment by the Delhi High Court legalizing homosexual rela onships
between adults by reading down most of Sec on 377 of the Indian Penal Code1 .
The judgment was predicated on several grounds, including the relevant sec on
being “an impediment to public health” (61). However, the fundamental reason
given was that the judgment infringed upon “the right to life and protec on of a
person’s dignity, autonomy and privacy” (25).
The court also held, quo ng from an earlier case2 , that a law infringing a fun-
damental right “must sa sfy the compelling state interest test” (75). It ﬁnally held
that “popular morality or public disapproval of certain acts is not a valid jus ﬁca-
on for restric on of the fundamental rights” (79), and further drew a dis nc on
between “cons tu onal morality” and “popular morality”. This prompted several
• What is the diﬀerence between what the high court called “cons tu onal
morality” and what it called “popular morality”?
• Is there even a dis nc on between the two?
• Where does democracy end and fundamental rights begin?
These ques ons inspired me to look further into the rich philosophy behind
law over the ages.
3 The Philosophy of Law
The theory and philosophy of law is known as Jurisprudence3 . Legal theories at-
tempt to answer ques ons like “What should the law be like?”, “What is the re-
“Naz Founda on v. NCT of Delhi”. Delhi High Court. 2009-07-02 <h p://lobis.nic.in/dhc/APS/
“Gobind v. State of MP”. Supreme Court of India. 1975.
Singer, Bryan A. “Jurisprudence”. Black’s Law Dic onary, 8th ed. West Group, 2004.
3. la on of law to morality?”, and considers law as a part of the wider social and
poli cal context it exists in.
4 Legal Theories
There are four major schools of legal thought.4
• Natural law, which holds that there are a set of rules that humans should
abide by that exist independently of society, and that law should simply
reﬂect these rules. This is the school of thought that binds law to morality
• Legal posi vism, which holds that law has no inherent connec on to moral-
ity, and that law is simply a set of “social facts”5
• Legal realism, which is the posi on that law is as it is prac ced all over a
• Cri cal legal studies, which considers that the law is largely “contradictory”
and that the law and prior cases are largely insuﬃcient to bind a court to a
par cular decision.
We will primarily be concerned with the two dominant legal theories, natural
law and legal posi vism.
4.1 Natural Law
As men oned above, this is the idea that there is a set of rules that exist in nature,
and that a law is good if it reﬂects these rules. Natural law systems are generally
the oldest systems of jurisprudence, and have historically closely been related
with religion. (However, natural law can be founded on non-religious bases too.)
Soper. “Legal Posi vism”. Cambridge Dic onary of Philosophy, 2nd ed. Cambridge Univer-
sity Press, 1999.
4. 4.1.1 Manusmṛti, or the Laws of Manu
Composed somewhere between 200 BCE and 200 CE, this text deals with the
crea on of the world, the source of law, and the du es of the four social varnas
4.1.2 Aristotlean natural law
Aristotle is o en said to be the father of natural law. He posited the existence of
a “δικαίον φυσικόν” or a natural jus ce, based on his idea of virtues being the
golden mean between two opposing vices7 . Aristotle counted prudence, jus ce,
temperance, and for tude as the four basic virtues.
4.1.3 Christian natural law
There have been several versions of this over the past two thousand years, with
the most prominent one (and the current one accepted by the Roman Catholic
church) being that of Saint Thomas Aquinas (c. 1225 – 7 March 1274). He ﬂeshed
out Aristotle’s theory further, calling Aristotle’s virtues cardinal virtues, revealed
in nature and binding on everyone. He added three theological virtues: faith,
hope, and charity, and considered them to be “supernatural”8 .
4.1.4 Islamic natural law
Sharia is the body of Islamic law, and it determines ﬁqh, which is the term given
to Islamic jurisprudence as prac ced by Islamic jurists. Sharia deals with issues
like democra c par cipa on, women’s rights, and slavery. In its structure, it is
generally considered to be the mediaeval system of law closest to modern con-
s tu onal law9 .
Jones, Sir William. The Ins tutes of Hindu Law: Or, The Ordinances of Manu. Calcu a:
Sewell & Debre , 1796.
Aristotle. Nicomachean Ethics, Book II, Chapter 6.
Aquinas, St. Thomas. Summa Theologica, Ques on 62, Ar cle 2. A reference is available at
Feldman, Noah. “Why Shariah”. New York Times. 2008-03-16 <h p://www.ny mes.com/
5. 4.1.5 Hobbesian natural law
Thomas Hobbes (1588 – 1679) expressed that natural law is a precept found out
by reason, “by which a man is forbidden to do, that, which is destruc ve of his
life, or takes away the means of preserving the same; and to omit, that, by which
he thinks it may be best preserved.”10
Hobbes believed that the only way this natural law could prevail was for peo-
ple to submit to the sovereign. Thus by not grounding his no on of law in any
par cular sense of morality, he created a “bridge” between natural law and legal
Hobbes ﬁnally laid out a set of nineteen laws in his trea se Leviathan11 .
4.1.6 Liberal natural law
Hugo Gro us (1583 – 1645) is considered to be the ﬁrst legal theorist to give a
descrip on of law in liberal terms. He also claims that natural law would exist
even if “there is no God, or that he takes no Care of human Aﬀairs”12 , in eﬀect
completely divorcing his no on of natural law from theology.
John Locke (1632 – 1704) provided a completely diﬀerent no on of natural
law — one that protected natural rights. In a marked contrast from Hobbes’s ver-
sion, he held that legisla ve power is only legi mate if it stays within the bounds
of natural law, and that natural law was limited to protec ng “life, liberty, or
[property]”. In his view, a state could not “destroy, enslave, or. . . impoverish its
subjects”13 . In eﬀect, he paved the way for the thinking that led to the United
States Declara on of Independence and contemporary libertarian philosophy.
4.2 Legal Positivism
Legal posi vism rejects the fusion made by natural law theories of what law is
and how people ought to behave. In the view of legal posi vists, laws are simply
Hobbes, Thomas. Leviathan. Andrew Crooke, 1651. A reference is available at
A list of these laws can be found in Chapters XIV and XV of Leviathan, or at
<h p://en.wikipedia.org/wiki/Natural law#Hobbes.27 natural law>.
Gro us, Hugo. De jure belli ac pacis, Book I. 1625. A reference is available at
<h p://oll.libertyfund.org/ tle/1425>.
Locke, John. Second Trea se of Government, Chapter XI. Awnsham Churchill, 1689. A refer-
ence is available at <h p://www.gutenberg.org/etext/7370>.
6. rules made by human beings, and there is no inherent connec on between laws
and morality. Where morality does come in is in people deciding whether to obey
4.2.1 Bentham’s view
Jeremy Bentham (1748 – 1832), as part of his works proposing a u litarian phi-
losophy, started oﬀ from Hobbes’s theory and further concluded that the goal
of the philosophy of law was to explain what the law was in prac ce, and not to
consider what it ought to be. He was also famous for being quoted for saying that
all no ons of natural law were “nonsense upon s lts”14 .
Bentham’s student, John Aus n, went a step further and claimed that laws
were merely commands from a sovereign with absolute power, (including sanc-
ons if one failed to comply), which people obeyed out of habit15 .
4.2.2 Modern legal positivism
Hans Kelsen later discarded the idea of an absolute sovereign and proposed the
idea of a Grundnorm (lit. basic norm) — “the fundamental rule according to which
the norms of a [legal] system are to be created”16 . This Grundnorm is not neces-
sarily derived from morality.
Several modern legal posi vists hold that moral considera ons may indeed
determine the legal validity of a norm17 . This is used to explain that there are
certain vices that no legal system can have, such as rape and murder.
5 Judicial Review
Now that we have been introduced to the most important theories of law, let us
look at the legal prac ce underlying such landmark cases as the one that led to
the reading down of Sec on 377 — the prac ce of judicial review. Judicial review
Sweet, William. “Bentham, Jeremy”. The Internet Encyclopedia of Philosophy. 2009-11-06
Aus n, John. The Providence of Jurisprudence Determined. 1832.
Kelsen, Hans, and Anders Wedberg. General Theory of Law and State. Clark, New Jersey: The
Lawbook Exchange, Ltd., 2007.
Waluchow, W.J. Inclusive Legal Posi vism. Oxford: Clarendon Press, 1994.
7. is the “power of the courts of a country to examine the ac ons of the legisla ve,
execu ve, and administra ve arms of the government and to determine whether
such ac ons are consistent with the cons tu on”18 , or with certain standards of
reasonableness. Any ac ons found inconsistent can be declared null and void.
The concept of judicial review originated in the USA, and today over a hundred
modern democracies (including the US, the UK, and India) have judicial review in
some form or the other19 . While the exact details might diﬀer, the spirit is the
same — it is an integral part of the system of checks and balances necessary in a
The conﬂict between the legislature and the judiciary can be viewed as the
conﬂict between the u litarian viewpoint, which the legislature provides, and the
deontological (but not necessarily Kan an) viewpoint, which the judiciary is sup-
posed to provide. The principle behind judicial review is that democra c power
should not be absolute, and certain basic rights should be protected from the
“tyranny of the majority”20
If the power of judicial review is used beyond what someone considers a rea-
sonable limit, it is usually derogatorily termed “judicial ac vism”21 .
We have already looked at the Sec on 377 judgment. Let us now look at an-
other major case that involved judicial review.
5.1 Roe v. Wade
This case22 was the ﬁrst major decision in favour of legaliza on of abor on in the
USA, and has become one of the most controversial examples of judicial review
in ac on. It involved a pregnant woman, Norma L. McCorvey, who was in Texas
at that me and wished to have an abor on. However, abor on was then illegal
in Texas. The case ul mately went to the Supreme Court of the US. In a judgment
”judicial review.” Encyclopædia Britannica. 2009. Encyclopædia Britannica Online. 2009-11-
06 <h p://www.britannica.com/EBchecked/topic/307542/judicial-review>.
de Tocqueville, Alexis. Democracy in America, Book One, Chapter XV, Part II. Pen-
guin Classics, 1835. A reference is available at <h p://ebooks.adelaide.edu.au/t/tocqueville/
Kmiec, Keenan D. “The Origin and Current Meanings
of ’Judicial Ac vism’.” California Law Review. 2009-09-18
<h p://www.cons tu on.org/lrev/kmiec/judicial ac vism.htm>.
The en re judgment can be found online at <h p://laws.ﬁndlaw.com/us/410/113.html>.
8. reached on January 22, 1973, the Court deemed abor on to be a fundamental
right under the US Cons tu on, and thus struck down all state laws against abor-
on. It appealed to the right to privacy as deriving from the right to personal
liberty, and asserted that it is “broad enough to encompass a woman’s decision
whether or not to terminate her pregnancy.” (This very same jus ﬁca on was
used by the Delhi High Court to read down Sec on 377.)
Roe v. Wade has been described by proponents as an example of why judicial
review is necessary, and by opponents as “an improvident and extravagant ex-
ercise of the power of judicial review”23 . The fallout from the law is s ll evident
5.2 From natural law
Jus fying judicial review is simple from this point of view. A set of rules exists, and
it is the court’s right (or even duty) to make sure that sovereign law corresponds
to natural law. Since Roe v. Wade is a “liberal” judgment in that it grants more
freedom to people, it can be said from liberal natural law that the right to privacy
is a fundamental natural right, and that the court was right in striking down the
laws that abridged this natural right.
5.3 From legal positivism
Jus fying judicial review is not possible via Bentham’s or Aus n’s no on of legal
posi vism (since the power of the sovereign is considered to be absolute).
However, it is possible to jus fy it by Kelsen’s formula on of a Grundnorm. If
a law violates the Grundnorm, it is en rely correct for the court to strike it down.
The ideas enshrined in the Declara on of Independence could be legi mately
called the Grundnorm of the USA.
Interes ngly, it has been claimed that the Grundnorm is in prac ce not com-
pletely arbitrary, but is at least par ally based on some sense of social prac ce
and morality25 . The similari es between the two arguments appear to support
this posi on.
“Doe v. Bolton”. Findlaw.com. 2009-11-06 <h p://laws.ﬁndlaw.com/us/410/179.html>.
Several other cases, including Naz Founda on v. NCT of Delhi, refer to it as a precedent.
“The Pure Theory of Law”. Stanford Encyclopedia of Philosophy. 2009-11-06
9. 6 Personal claim
Now that I have laid out the facts and jus ﬁca ons, I would like to make a personal
claim in favour of liberal natural law. I think that it is self-evident that there are
certain fundamental rights that humans have, such as the right to life, liberty, and
property, and I think that there are no posi ve rights26 inherent in nature, though
some might be added on by societal norms.
There can be several objec ons raised against this claim.
6.1.1 The is-ought problem
A supposed problem with any natural law theory is that it claims that natural
laws exist, so people ought to follow them. The usual answer in case of natural
laws is that such a law “takes its place in a scheme of prac cal reasoning whose
proximate star ng point is the moral need for jus ce and peace,” which is in turn
derived from the need for human well-being27 . Thus natural law theory shares
its basic idea with contemporary legal posi vism, that “laws depend for their ex-
istence and validity on social facts.”
In the case of liberal natural law, We can further extend this argument to say
that it makes minimal demands on what people ought to do.
6.1.2 Legalizing immoral positions
Another objec on is that liberal natural law would legalize posi ons that large
sec ons of society ﬁnd immoral. I claim that this is actually a beneﬁt and not
a drawback. In the applied ethical domain, people can start oﬀ from the same
moral theory, add amoral value judgements to it, and end up with opposite opin-
ions. For example, one could start oﬀ by saying that killing people is wrong, and
then diﬀer on when an embryo becomes a person.
Posi ve rights are rights that, very roughly, require people to do something. This is contrast
with nega ve rights, where people are required to not do something.
“Natural Law Theories”. Stanford Encyclopedia of Philosophy. 2009-11-06
10. This has been termed as the “moral matrix” by psychologist Jonathan Haidt28 .
My claim is that it is important for the law itself to be outside the moral matrix
and let society as a whole come up with solu ons. If the law takes a par cular
posi on, the other posi on is snuﬀed out. The only way to preserve choice for
individuals and society as a whole is for laws to be liberal.
6.1.3 Why not legal positivism?
The problem with legal posi vism is that it doesn’t guarantee that the laws are
going to be liberal. While I would be ﬁne with a set of laws where the Grundnorm
is liberal, legal posi vism as a whole doesn’t guarantee that. A claim in terms
of liberal natural rights guarantees that a law that violates certain basic rights is
wrong and should be struck down.
7 More Questions in Jurisprudence
There are several other important ques ons in applied jurisprudence that I haven’t
been able to fully explore.
• How should judges decide cases for which there is no controlling law? The-
ories of law may a empt to answer this by appealing to a higher natural
law or Grundnorm, or by leaving it to the judge’s discre on en rely, as le-
gal realism does.
• Is there a right and a wrong in legal disputes, or is legal reasoning basically
indeterminate? This is a meta-jurispruden al ques on, and as such is one
of the topics focused on in cri cal legal theory.
• Is morality legally binding regardless of whether it has been enacted into
a law? A (non-liberal) natural legal theorist would presumably say “yes”,
while a legal posi vist would say “no”.
“The real diﬀerence between liberals and conserva ves: Jonathan Haidt on TED.com”. TED.
2009-08-15 <h p://blog.ted.com/2008/09/the real diﬀer.php>.