When we judge human action as right or wrong we apply certain principles. There is an inborn sense of right and wrong in human nature. Who taught us to respect truth, and to despise deceit? ‘Right’ and ‘wrong’ are essentially a social phenomenon.
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They are born of social contract. There are two branches of human learning which are devoted to the study of right and wrong, law and ethics of the science or morals. These two branches are closely connected. They are different aspects of the same problem.
Both law and morals regulate human conduct in allied but essentially distinct ways. Laws tell us that this is a right act and that is a wrong act, that a man shall do this and shall not do that. Ethics is not so categorical and so definite in its approach. It studies what ought to be the right human conduct. It searches for an ideal. It is a study of supreme good.
There is difference between law and morals. The morals are concerned with the individual and lay down rule for the moulding of his character. Law concentrates mainly on the society and lays down rules concerning the relationship of individuals with each other and with the State.
The morals are an end in themselves. They should be followed because they are good. The law is for the purpose of convenience and expediency, its chief aim is to help in a smooth running of society. Generally morals are considered to be of universal value. Law is relative-related to the time and place.
There are certain principles which we call basic. They embody primary and eternal human values. They are born of collective human experiences through the ages and are the common heritage of all mankind.
They come within the province of Ethics in its search for an ideal, and law also respects them and seeks to adjust itself to them as far as possible. The only force behind these and other moral principles is popular acceptance or human goodwill, but behind law stands the brute force of the State.
Law very often secures ethical ends but there are certain moral principles which it is not possible to enact into law or enforce through State action. A breach of such principles is immoral but not illegal. It is a moral wrong but not a legal wrong.
The law shall not prevent or punish such a breach though the fear of falling in popular estimate may restrain it. Therefore, it is often said that crime is different from sin. Law is also different from morality. By ‘law’ Austin and Stephen meant a system of commands addressed by the sovereign of the State to his subjects imposing duties and enforced by punishments.
By ‘moral’ Stephen meant a system of rules of conduct imposed in part by opinion of others and in part by each man’s own opinion of his own actions which is conscience. The sanction of morality and such is the approbation and disapprobation of others and of ourselves.
Moral rules are not so determinate as legal rules but the sanction by which they are enforced is more certain as men cannot escape from their own opinion of themselves, nor from their desire of the approbation or the fear of disapprobation of others, nor can they flatter themselves that they are mistaken in the facts from which their estimate of themselves and their own conduct proceeds.
There are certain moral principles which, though not capable of being enacted into laws, are capable of being enforced through State action. There is an endless variety of human circumstances and situations which calls for elasticity of approach.
Since law is formal and rigid, to formulate these principles into law may be to defeat the purpose of such principles. They are therefore left to the discretion of Courts in the application of law and the dispensation of justice. Principles of equity and natural justice are principles of such kind.
The breach of a moral principle is called a sin, of a principle of the law, a crime or an actionable wrong or a principle of natural justice, an injustice; Law, Ethics and Natural Justice are distinct though overlapping spheres.
An act may at once be immoral, illegal and unjust, or it may be immoral and illegal but just or it may be immoral and unjust but legal or it may be moral but not legal or just. The three things being independent, an act may have any one or more of these qualities.
What Christ did for humanity was morally upright but legally wrong because it was opposed to the law of the day in the Roman Empire; it was adjudged a crime. As the authors of the Penal Code observe, “we cannot admit that a Penal Code is by any means to be considered as a body of ethics, that the legislature ought to punish acts merely because those acts are immoral, or that because an act, is not punished at all, it follows that the Legislature considers that act as innocent.
Many things which are not punishable are morally worse than many things which are punishable… “The rich man who refuses a mouthful of rice to save a fellow-creature from death may be far worse than the starving wretch who snatches and devours the rice; yet we punish the latter for theft, and we do not punish the former for hard heartedness”.
Justice may call for the punishment of a wrong-doer but it is illegal to punish him in the absence of admissible evidence. It is illegal to accept a rightful claim barred by limitation.
It is a basic moral principle that it is wrong to tell a lie or break a word. An offence of cheating or criminal breach of trust involves a breach of such basic principle, but law does not punish all lies or breaches of promise.
The lies of braggart; the breach of a promise to fulfil a social obligation, such as the promises of a dinner, the breach of a social duty, e.g., ingratitude, are morally reprehensible but not legally punishable.
It is not enacted into law but in practice courts see that he who seeks justice must do justice or he who comes to court must come with clean hands. Thus, a party who claims something as right he cannot refuse to the opposite party what is rightly due to such party under the law.
If a man gives a false coin to a person for loosing a bet, and the latter sues the former, he cannot succeed for a breach of contract. When two thieves fall out in the distribution of spoils or the enjoyment of proceeds, law will not help in equitable distribution between them. The moral principles involved in such cases come within judicial discretion.
They are enforced through State action though not formulated into law. They are applied when interpreting or administering law and constitute the principles of equity and natural justice.
Having examined the surroundings, we are now in a better position to re-examine the nature of law. Law is not right alone, nor might alone, but a perfect combination of the two. It is the will of the State according to Austin, a uniform command of the Sovereign to the subjects, of the political superior to the political inferior.
Law, as Holland aptly puts it, “is a general rule of external human action enforced by a sovereign political authority”. He goes on to assert that “all other rules for the guidance of human action are laws merely by analogy; and propositions which are not rules for human action are laws by metaphor only. It is not a gift of God. It is man-made to protect the interest of society as well as of individuals.”
We use the term “Law” in two senses, in the abstract and in the concrete. In the abstract, it means the system of law, as law and justice, the law of England, Criminal law, the law of marriage and divorce; in the concrete it means an exercise of legislative authority, a law or laws, statute or statutes.