Concept and Meaning of Morality

1. Morality regulates inner motives as well as outward actions. It looks at a person's intentions, motives and character, and not only at what he does.
2. Morality does not come from the State. It grows out of social norms, religion, customs, traditions and individual conscience.
3. A person obeys moral rules because he feels bound to, and not because he fears punishment.

1. Hart separated positive morality from critical morality. In Law, Liberty and Morality (1963), Hart used "positive morality" for the moral rules that a group actually accepts. He used "critical morality" for the general moral principles that people use to criticise the rules and institutions of their own society. The first describes what a society believes. The second asks what it should believe.

1. Morality is voluntary. No one is forced to follow it, and a person obeys it by choice.
2. Morality is enforced by inner conscience. A breach brings guilt and social criticism, and not legal punishment.
3. Morality deals with intentions as well as actions. Law punishes theft, but morality condemns even the wish to steal.
4. Morality varies from society to society. What one community treats as right, another may not.
5. Morality is flexible, informal and evolving. It changes with time and does not depend on a written code.

1. Law and morality are closely related, but they are not the same. Many legal rules come from moral principles. However, not every moral rule becomes law, and not every law is moral. The moral rule to speak the truth has a legal counterpart in the punishment of perjury, which means lying under oath. That is Section 193 of the Indian Penal Code, now Section 229 of the Bharatiya Nyaya Sanhita, 2023. Telling a lie in private has no legal consequence.
2. Morality influences law, but law has its own existence. Morality often shapes legislation, and law then works through its own rules and sanctions.
3. Jurisprudence has three main views on the link between law and morality.

1. The Hart and Devlin Debate

   The debate asks whether law should enforce morality.

   1. Lord Devlin said that a society may use its law to protect its shared morals. In 1957, the Wolfenden Committee in England recommended that private homosexual acts between consenting adults should no longer be a crime. Devlin argued against this view.
   2. Hart answered that law should interfere with private conduct only to prevent harm to others. Hart's view in Law, Liberty and Morality (1963) shaped later reform in many countries.
2. The Hart and Fuller Debate

   This debate asks whether an immoral law is still law. In 1958, Hart and Fuller argued about Nazi-era statutes. Hart said that such a statute is law, but that it is too evil to obey. Fuller said that a statute that is gravely unjust lacks the quality that makes a rule law.

1. Indian courts use "constitutional morality" to separate law from popular moral opinion. In Navtej Singh Johar v. Union of India (2018), the Supreme Court gave weight to the values of the Constitution, and not to the moral views of the majority, and read down Section 377 of the Indian Penal Code. The Bharatiya Nyaya Sanhita, 2023 has no equivalent provision.
2. Adultery shows that a moral wrong is not always a crime. In Joseph Shine v. Union of India (2018), the Court struck down the offence of adultery, which many regard as a moral wrong. It held that the State has no business to punish it as a crime. The BNS has no adultery offence.

1. The scope difference is the one that is easiest to see. Law punishes theft, but morality condemns even the intention to steal.
2. Some rules are both legal and moral, some are only one of them. The table below shows the three groups.

Morality and law both guide human conduct, but they work in different ways. Morality rests on conscience and covers motives as well as acts. Law rests on State authority and covers external conduct. Each influences the other, and neither can fully replace the other.

A legal system that ignores morality risks becoming unjust, and a society that tries to enforce all morality through law risks becoming oppressive. Jurisprudence helps us understand where the line between the two should fall.