Theory of Relationship between Law and Morality

Theory of Relationship between Law and Morality

Ever since the revival of the scientific study of jurisprudence the connection of law and morality has much discussed, but the question is not yet, and perhaps never will be settled. Every variety of opinion has been entertained, from the extreme doctrine held by Austin that for the purpose of the jurist,

law is absolutely independent of morality, almost to the opposite positions, held by every Oriental cadi, that morality and law are one. The question is an important one,

and upon the answer which is given to it depends upon the answer which is consequences. The problem is an intensely practical one.

The popular conception of the connection between law and morality is that in some way the law exists to promote morality, to preserve those conditions which make the moral life possible,

and than to enable men to lead sober and industrious lives. The average man regards law as justice systematized, and justice itself as a somewhat chaotic mass of moral principles.

On this view, the positive law is conceived of as a code of rules, corresponding to the code of moral laws, deriving its authority from the obligatory character of those moral laws,

and being just or unjust according as it agrees with, or differs from them. This, like all other popular conceptions, is inadequate for scientific purposes, and the jurist, so for at least as he is also a scientist, is compelled to abandon it.

For it is contradicted by the fact’s. positive laws do not rest upon moral laws and common notions of justice furnish no court of appeal from the decrees of the State. The average man confounds law and morality, and identifies the rules of law with the principles of abstract justice.