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.
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”.
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