The Shifting Landscape: Exploring the Interplay Between Law and Morality in Contemporary Society.

Author: Bhavya Sree Bandlapalli

For centuries both law and morality went hand in hand, from the Roman empire of the far east in the 5th century BCE till today’s Indian constitution, every empire, kingdom, or republic that worked for its subjects’ welfare attempted to keep morality on the same pedestal as the law. But what happens when these two (law and morality) diverge and split into conflicting positions? The famous Grudge Informer’s case deals with one such scenario. Though this case might be an old citation to the conflict of law and morality, the views it brings to the discussion table are equally relevant and pertinent even today.

The problem of the Grudge Informer dates back to a case in 1944^[1] where a woman denounced her husband to the authorities for insulting remarks he had made about Hitler while on leave from the army. However, the case was merely a cover-up to get rid of her husband because she was having an affair. Eventually, the husband was found guilty and sentenced to death. She filed this case under Nazi statutes which were implemented earlier during the World War. After a few years, in 1949, this case was revisited in a German court where it decided that the woman deprived the man of his liberty, a crime punishable under the German Code of 1871; it remained in force even during the Nazi reign. The woman pleaded not guilty and defended that she acted in accordance with the law and statutes and thus committed no crime. However, the court of appeal found her guilty of the offense of deprivation of liberty and breaking the law.

This case raised a heated debate between renowned legal philosophers HLA Hart who believed in legal positivism, and Lon L Fuller, who went with natural law theory^[2]. Consequently, the very core of the correct concept of law has come into question, and brought forth the debate on which legal philosophy should be adopted.

Listed below are five different schools of reasoning on the question: can the Grudge Informer be convicted?

Legal Positivism – This school of the law depends on social facts and not on its merits. Simply put, it emphasizes the conventional nature of law and puts it forward as socially constructed. When this applies to the case, legal positivists argue that the case may have been morally repugnant, but it was legal; the law is the law. It clearly demarcates between law and morals leading to no action. Thus, the question of what the law is and the question of what it ought to be are entirely separable. In this theory, neither the judges nor other adjudicators cannot employ their own sense of moral judgment to determine what the law is. The dichotomization of the rule of law without a sense of morality might normalize brute laws and statutes such as the Grudge Informers. However, others, such as HLA Hart, differ in their ideas of law and its applied philosophy. 

HLA Hart is a leading contemporary legal positivist in Anglo – American jurisprudence believes that two different types of rules comprise the “essence” of law^[3] i.e., Primary and Secondary rules. Primary rules are duty imposing rules; they tell the citizen what one can and cannot do under the law. Secondary rules are not duty-imposing rules that state the manner in which primary rules may be recognized, changed, and adjudicated. Hart’s view of distinguishing rules and laws is much less applicable today due to the ubiquitous use of separation of powers in every state or country. Similarly, in the Grudge Informers’ case, Hart reads the situation in white and black and disregards any law that does not fit his ideology rather than exploring the grey area in between. Therefore, his recommendation and reasoning fail as it is contradictory and, to say, more relativistic.

Natural law theory – A theory in ethics and philosophy that says human beings possess intrinsic values that govern their reasoning and behaviour. A society or a court judge does not create this natural law theory; instead, it rules on people’s inherent right and wrong. Legal philosophers such as Fuller argue that the law has specific moral requirements, and the Nazis behaved arbitrarily with no sense of the rule of law. As the Nazi informer statutes were immoral and the trial in 1944 of the husbands was on Malefice grounds, it should be decided invalid according to the naturalist’s theory of law. It also brings the subject of openness and its fundamental fairness into relevance. According to this theory, we can say that Nazi acts, statutes, and laws were so extremely unjust that they would not be morally considered laws.

In this case, Fuller, in his publications^[4], comes to grips with the issue of the relationship between law and morality. He divides morality into four categories, coalescing them into what can be outlined as two different sets of morality, each with two opposite components. One encompasses the “morality of aspiration” and “morality of duty,” which describes the standards followed by a human being’s desired conduct independent of any consideration of actual human activities. The other set includes the “external morality of law” and the “internal morality of law”, which is essentially concerned with the procedure of law-making. The above reasoning needs more specificity to apply to real-life problems, and Fuller himself admits that the absence of precision is unavoidable due to our current legal structure. Ultimately for naturalists, the legal system did not matter; they supported the court of appeal’s decision in sentencing the woman as the intentions were immoral and her actions should not go unpunished.

Legal Realism asserts that law is the product of decisions made by courts, law enforcement, and attorneys, often decided on contradictory or arbitrary grounds. According to legal realism, the law is not a rational system of rules and norms. Legal realism is critical of the belief that law has a nature that can be determined in the abstract. Realism theory leads to the only answer in this argument to decide the matters case by case evaluating every piece of evidence and intent through the trial procedure.

The fourth argument asserts that the Grudge Informers used the law to their advantage. Moreover, to apply existing laws of the German Court in 1949 to the actions of the Grudge Informers might be retrospective. This increases the need for ex post facto law and develops a new statute altogether. According to this argument bringing a new law would be irresponsible as it would face the problem of differentiating the Grudge Informers from other criminal activities of that time.

The fifth and final argument is what was called the ‘Wild West’; this states to do nothing like the positivists and naturalists but differs in the grounds of why. It also recommends that the instinct of revenge to express directly without the intervention of law be allowed. This argument breaks the most rudimentary concept of law by doing nothing and a flawed reason for why.

Though the primary debate is between Hart’s legal positivism and Fuller’s Natural Law Theory, the third view of Legal Realism is included because it reflects today’s judicial approach prevailing around the globe. Even though the other two arguments pose sensible ideas, they each don’t address the issue holistically. Agreeably the system now in use has its own loopholes, but throwing a blanket solution to all problems, such as in the case of the Grudge Informer, would cause much more damage to justice and humanity. Thus, going with Legal Realism makes much more sense than leaving the law as it is or altogether abandoning it. 

With this background, let us examine one of the current issues seized by the Supreme Court Of India: ‘same-sex marriage’. After the striking down of Sec 377 of I.P.C., in Navjot Singh v. Union of India^[5], the next step that is being pursued by the activists is on the legalization of same-sex marriage and recognition of homosexual couples. The controversy over homosexual marriage is not a new rock on the hill but a debate older than two decades. It already resulted in 25 countries legalizing same-sex marriage, including the Netherlands, Belgium, Canada, and Germany. This is a discordant issue in India that yearns for public acceptance and is not a separate alienating topic. Still, it will surely meet significant resistance from Hart’s legal positivism and Fuller’s Natural law theory because the application of either of the ideas would not garner any support for this issue.

The school of legal positivism holds that law is a social contract that must be followed as it is written, irrespective of the moral order. In the case of same-sex marriage, all the statutes in India citing marriage provisions, such as the Hindu Marriage Act of 1955, The Indian Christian Marriage Act of 1872, and even The Special Marriages Act of 1954, are predicated on a man and woman marrying and nowhere gives provision to same-sex couples. Legalizing and including same ex couples in these statutes would involve not only convincing different sects of society as this issue is intrinsically linked to religious-based personal laws, but also addressing the other general laws such as succession. The Supreme Court of India probably may try to approach it from the Right to Equality under the fundamental rights of the Indian constitution, but it would leave more questions than answers as judiciary cannot amend laws wholesale. That would raise the question of the judiciary making the laws on same-sex marriage, which is the domain of the legislature.

In Fuller’s reasoning of the school of Natural law theory, it argued that all actions that are immoral ought to be illegal too. Here a theological argument about what’s said to be moral and what’s not has to be discussed in the context of India’s diverse culture and religions. Senior advocate Mukul Rohatagi, appearing for the petitioner’s side in the case of same-sex marriage before the Supreme Court of India, said, “Popular public morality cannot deter the SC from extending equal rights constitutionally available to same-sex couples. With the decriminalization of Section 377 of IPC, society has accepted the LGBTQIA+ community. After five years, it is time for them to enjoy full marriage rights”. These words appear to be an over simplification of the subject and appear more as a take-it-or-leave-it perspective; instead, we see here bringing various questions of morals that India held onto for centuries.

Just as in the case of the Grudge Informer, even the case of same-sex marriage cannot prove its position with the oldest theories of law (i.e., Legal Positivism and Natural Theory of Law). Leaving us to take the path of Legal Realism as it relies on empirical evidence and observations made against the world not limiting itself in possible outcomes. Instead of dividing law and morality into two separate entities, it would benefit the judges to see them both as one to decide what law is rather than simply applying it. To understand a Realist narrative, one must look outside the law and legal processes into ideologies of various societal spaces such as economy, politics, religious customs, morals, and ever-developing scientific tolerance. Similarly, the homosexual couple legalisation outcome has to be weighed on with the impact that it would create outside the walls of the court to rule of law or supremacy of spirit of law. Now in the actual applicability of Realism, a balanced sense of principles of equality, justice, and good conscience is needed for judges not to cross the boundaries of either morality or law. Nevertheless, we need to prove how effective and practical this strategy of balanced realism is.

Author is a Law Student at the University College of Law, Osmania University

she can be reached at bhavyasree.b13@gmail.com

---

^[1] Bialas, Wolfgang, and Lothar Fritze (eds.). 2014. Nazi Ideology and Ethics. London: Cambridge Scholars Publishing.

^[2] HLA Hart, “Positivism and the Separation of Law and Morals,” reproduced in Hart, Essays

in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) 49, hereafter “Hart”; Lon L

Fuller, “Positivism and Fidelity to Law- A Reply to Professor Hart,” (1958) 71 Harvard Law

Review 630, hereafter “Fuller.”

^[3] HLA Hart, The Concept of Law (Oxford: Clarendon Press, 1994, second edition)

^[4] Lon L Fuller, The Morality Of Law (Yale University Press, 1969, revised edition)

^[5] Navtej Singh Johar & Ors. v. Union of India AIR 2018 SC 4321.

(In view of the aforesaid findings, it is declared that insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution. It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion.”)