Saturday, 5 July 2014

Law & Morality

Consider these situations.

Situations 1:-

You are driving a car which loses its brakes and on one hand you have a choice of crashing it on five persons and killing them instantly and on the other running over one man and killing him. I’m assuming that the choice would be near unanimous to run over one person and save five.

Situation 2:-

You’re a bystander on a road where a car, whose brakes have failed, is hurtling at 5 men. You could save those 5 men by pushing one innocent man, standing with you, on its path and stopping it. Surely that one man would die but it would save five lives. Would the principle of five lives versus one as in Situation 1, apply here too??

Need it be said further that the morality of any act is often considered to be located in the consequences of it. The state of affairs that would be the end result of one’s act. At the inception of my career I often encountered this nagging query concerning the relation between law and morality. I was frustrated on quite a few occasions where I'd helplessly discover that a certain immoral deed is without any legal consequence. I would seethe with anger at the lack of any remedy for the victim in such cases. To an untrained mind there would hardly exist any difference between the two concepts.   However, while morality may be persuasive, it isn't binding, law is. Hence a person may get away with an immoral deed but he can't do so with an illegal act. . Human response to a wrongful action should be the same irrespective whether it breaks a law or it disregards morality. This theory logically entails a comprehensive understanding of the two terms. But do we actually understand their meanings and respective scopes to be able to appreciate the fine yet profound difference between the two. Before proceeding let me tell you that I decided to share my views on this issue when I read the opinion of one my esteemed readers, wherefrom it appeared that despite his respectable understanding of sociology and politics, he faltered in distinguishing the difference between law and morality.

In one not so old case the Hon'ble Apex Court was seized with a question as to whether a man who promises to marry a woman, cohabits with her and establishes sexual relationship with her but could not ultimately marry her, be charged and convicted under Section 493 of the IPC. (For your benefit I have represented Section 493, IPC as it stands) " Cohabitation caused by a man deceitfully inducing a belief of lawful marriage.—Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." The Bench which was adjudicating this case was a Division Bench (two Judges). The matter could not be resolved as one of the Hon'ble Judges thought that in such cases, what the man may have done may at worst be called immoral or it may be concluded that he isn't a gentleman, if deceit could not be proved behind his acts, whereas the other Hon'ble Judge thought otherwise and found nothing wrong in attaching criminal consequences with such acts. The matter was thus referred to a larger bench for adjudication. Be that as it may, the point which is thus instantly realized is that law and morality are not the same thing even though the fabric of our society is built upon these two founding stones.  In ancient times there was hardly any difference between the two. Be it the jurists of Greece or Rome or our very own Vedas, morals formed the bedrock of laws. In later years, law would come to be distinguished from morals. The chief distinction being their respective sources. While morals have their genesis in religion and / or conscience, laws owe their authority to the State. Law focuses mainly on the society and lays down rules concerning the relationship of individuals inter se as well as with the State." It is therefore quite clear that while morality is based on the behaviour, conscience building and goodness of deeds, law on the other hand deals with enforceable norms that mainly intend to maintain order and peace in the community of men. While laws are means to an end (of peace in society), morals are of no such nature. They are to be followed as they are good in themselves.

While it may be immoral to see a man drowning and not help him, to see a beggar starving and not feed him, to see a man falling down and badly injuring himself and not taking him to medical help or to look on at a woman being harassed and standing mute, there is nothing illegal per se about these actions / omissions. For an act or omission to be illegal, it must be prescribed to be so by law. If it isn't then that act or omission howsoever despicable or immoral it may be, does not involve any illegality. There are even certain laws which are opposed to morals. For example morals will never hold any man vicariously liable for the wrongful acts of another man, but the law does, in cases where the actual offender is under the employment or agency of the other man who is vicariously liable. e.g. A Govt. chauffeur if causes death of someone by negligent driving, then the Govt. can be made liable for his acts and ordered to pay compensation to the victim or his family.

So are we to conclude that law and morality are completely divorced from each other ?


  1. I agree with you and morality are like two parallel lines ..they have strong affinity towards each other but intersection is almost impossible..

    1. Quite right Maniparna. Thanks for reading and sharing your view.

  2. well well I face this almost each day.. but what we were taught is do the best you can and take a stand then do what needs doing ..

    Reminds me of a incident.. a small dingy room, full of drugs paraphernalia, a small kid 2 to 3 years old in a corner, the occupants busy shouting at each other.. we went in .. i picked the kid brought him out, called the ambulance.. the occupants ran away .. to me it was more important to save the little kid.. but to another apprehending the occupants was more important as they would go and supply others .. more damage

    morality and law.. well well what can i say