Jurisprudence and Legal Theories · Chapter 9
Study notes aligned to the official NEB syllabus.
The relation between law and morality is one of the oldest questions in jurisprudence. It is also one of the most practical. Both law and morality are systems of rules. Both guide human conduct. Both tell us what we ought and ought not to do. In a well-ordered society the two mostly agree. Yet they are not the same thing. Law is enforced by the state. Morality is enforced only by conscience and by what society thinks of us. A student of jurisprudence must understand three things. First, how the two are connected. Second, how they differ. Third, how a legal wrong differs from a moral wrong. The whole debate about what the state should and should not punish turns on these points.
Law (कानुन) is the body of rules that the state recognises and enforces. Morality (नैतिकता) is the body of principles of right and wrong conduct recognised by conscience and by society. The two are different, but they are deeply connected. Their relationship can be seen from three angles.
First, morality is a source of law. Much law has grown out of the moral ideas of society. Rules against killing, theft, cheating and dishonesty are legal rules today. But they began as moral rules. The Muluki Penal Code 2074 makes murder and theft punishable. In doing so it gives the force of law to what morality had already condemned.
Second, morality is a test and guide of law. The natural law school holds that law should agree with morality and justice. It holds that an unjust law loses its moral authority. So morality acts as a standard. We use that standard to criticise law and to reform it. The Constitution of Nepal 2015 guarantees equality and dignity. It guarantees the right against untouchability and discrimination. In this way it writes shared moral beliefs into the supreme law. Any ordinary law that goes against these rights is void to that extent.
Third, morality supports the working of law. A law is obeyed more easily when it agrees with the moral sense of the people. It is also enforced more easily. A law that offends common morality is a different story. People evade it widely. It is hard to enforce.
At the same time, law and morality do not fully overlap. Some rules of law are morally neutral. Think of the rule about which side of the road to drive on. Think of the forms needed to register a document. There is nothing moral or immoral about driving on the left by itself. Yet the law must fix one rule so that traffic stays orderly. Some moral duties are not enforced by law at all. Gratitude and ordinary charity are examples. And sometimes law and morality may even seem to clash. The modern view draws on both the analytical and the natural law traditions. It says law and morality are separate systems that influence each other. Law needs the support of morality to be effective and just. Morality needs law to give its most important demands a definite and enforceable form.
Law and morality are related. But they differ in several clear ways. The contrast is best drawn point by point, with examples.
As to source. Law is made or recognised by the state. Morality comes from conscience, religion, custom and social opinion. Morality has no single author. The ban on theft is law because the state has enacted it in the Muluki Penal Code 2074. The feeling that one ought to be grateful to a benefactor is morality. No statute declares it.
As to enforcement. Law is enforced by the state through courts and sanctions. A sanction is the penalty that follows a breach, such as punishment or compensation. Morality is enforced only by conscience and social disapproval. It carries no legal penalty. A thief may be imprisoned. An ungrateful man suffers only the loss of other people's respect.
As to subject matter. Law is concerned mainly with the outward conduct of a person. Morality is concerned with both outward conduct and inner motive and intention. A person who merely wishes his neighbour dead commits no crime. The law cannot reach a mere thought. Yet morality condemns the evil wish.
As to certainty. Law is definite and written. It is the same throughout the state. Morality is often vague. It varies from person to person and from place to place.
As to scope. Law covers only part of human conduct. It covers the part the state chooses to regulate. Morality covers the whole of conduct. It includes matters the law leaves alone, such as how one speaks to one's parents.
As to purpose. Law aims chiefly at order, justice and the regulation of society. Morality aims at the inner goodness and perfection of the individual.
These differences show something important. Law and morality share much common ground. But they are distinct systems, with distinct sanctions.
A legal wrong (कानुनी गल्ती) is an act or failure to act that goes against the law. It is a breach of a legal duty. For it the law provides a remedy. That remedy may be punishment or compensation. A moral wrong (नैतिक गल्ती) is an act that goes against the principles of morality. It is a breach of a moral duty. Its only sanction is conscience and social blame.
The two often coincide. Murder, theft and cheating are legal wrongs. They are punishable under the Muluki Penal Code 2074. They are also moral wrongs that conscience condemns. So the person who commits them faces both the court and the disapproval of society.
But the two can also diverge. The divergence is worth showing in both directions. An act may be a moral wrong but not a legal wrong. Suppose a man sees a stranger drowning in a shallow pond. He could easily help, but he walks away. Or suppose a person is coldly ungrateful to the benefactor who raised him. These are plain moral wrongs. Yet unless some specific legal duty bound the person, the law gives no remedy. He commits no legal wrong.
The other direction is also possible. An act may be a legal wrong but barely a moral wrong. Parking a vehicle in a prohibited place is an example. Overlooking a minor technical formality in a licence is another. These are legal wrongs that may attract a penalty. Yet they carry little or no moral blame. They are wrong chiefly because the law forbids them. Lawyers call such an act an offence mala prohibita (wrong because prohibited). They contrast it with an act that is wicked in itself, an offence mala in se (wrong in itself).
Why does this difference exist? Law regulates only the part of conduct that the state has chosen to enforce. Morality judges the whole of conduct. It even judges thoughts and motives that the law cannot reach. Seeing this distinction helps a student understand two things. Not every sin is a crime. And not every crime is, in itself, a grave sin.