–Hem Raj Kafle
This article discusses the nexus between law, morality and public policy. It shows that the three are complementary and interdependent factors, human society being the ground for each to emerge and operate. The first three sections of this essay present the mutual relationships between the three in this order: law and morality, morality and public policy and law and public policy. The final part concludes the discussion.
Law and Morality
The common function of law and morality is to regulate human behaviour so as to establish a congenial social environment for all humans. Law and morality help manage the relationships between individuals and the society, or further, between individuals, societies and the state. Morality encourages individuals towards ‘being good’ and ‘doing good’ for the sake of the well- being of the society as a whole. Thus law and morality come together — “… to complement each other, rather than compete with each other” because “human flourishing requires such complementarity” (Shiner 436).
The “complementarity” implies that law and morality rely on each other; one can be both means and end to the other. Certain legal provisions are directed by the need to respect existing moral norms. This can be seen in the way law prohibits and penalizes actions that are universally considered immoral. To quote Kent Greenawalt’s argument, “Murder, assault, theft and fraud are immoral. In any society sufficiently developed to have law distinguishable from its social morality, the law will forbid murder, assault, theft and some forms of fraud” (476). One of the ends of law is, therefore, to enforce morality in the society, especially when it comes to controlling the practices which directly or indirectly harm the society itself. Law, therefore, preserves the dignity of human life and brings “pleasure and satisfaction to those who live it” (Shiner 436). This indicates that dignity is a relative stage of human psychology and is realized as a source of “pleasure and satisfaction” in connection with the performance of moral duties and responsibilities.
There are arguments for and against the place of morality in the foundation and functions of law. Natural law theory holds that “there is a necessary connection between law and morality, such that an immoral law is invalid or not binding” (Smith 304). According to this school of thought, for law to be a just law, it has to be based on two sources: the law of the divine and the law of nature. But the positivists, in their fundamental “separability thesis” claim that “it is not necessary in all legal systems that for a norm to be a legal norm it must possess a moral value …” (Coleman and Leiter 241). Though such divisions exist, in contexts where law has to address the social, cultural, moral and natural needs of individuals and society, the interdependence between law and morality cannot be ignored. In the words of C.G. Weeramantry, “Just as moral standards have exercised a continuous and continuing influence on the law, so also legal standards can exercise an influence on morals” (132). Weeramantry highlights the inseparability and interdependence between law and morality and illustrates that such interdependence has worked throughout the phases of the evolution of the law.
Morality and Public Policy
Morality forms a ground for the evolution and legal enforcement of public policy. As stated above, morality inspires people to be united and to care for the welfare of one another; it enhances the concept of collective well-being in people. Morality also helps public policy take birth. Public policy in a broader sense is a system that addresses the moral, cultural and economic values that maintain the unity of the society. A society accepts only those practices that have passed the test of the norms of morality it has consistently observed. This is why the issues like prostitution and homosexuality may not be easily be legalised in Nepal because majority of the Nepali citizens take them as immoral practices. Morality, like law, has norms “relating to the avoidance of interpersonal harms and the management of limited resources, … norms which regulate the distribution and holding of goods” (Shiner 437). When we talk about harms, we don’t mean the direct assaults or immolations alone. Practices that indirectly disrespect the moral sentiments of other people can equally be taken immoral. Law respects these sentiments and enforces the norms of morality to maintain public policy. Greenawalt highlights this concept saying that “in a country that is overwhelmingly Jewish or Muslim, prohibitions on pork eating would be acceptable” (484). If so applies, it is equally plausible on the part of the governments to impose restriction on slaughtering cows in a society dominated by Hindus.
There are limitations in the process of imposing morality in the name of the respect to public policy. In the context of secularism, it would be questionable if the government of Nepal imposed legal restrictions upon the cultural practices of other religious and ethnic communities in the name of respecting the sentiments of majority Hindus. Legal restrictions on the practices of minority, which are thought to offend the beliefs of the majority, may fail to materialise as a sufficient justification in liberal democracy (Greenawalt 485). The point here is that if people are divided in terms of religious beliefs, moral norms grounded upon individual religions do not form consistent public policy. However, morality supports and enhances public policy for the common good of the members of the society.
The relationship between morality and public policy can be seen in the way both are connected to law. Natural law theorist Lon Fuller asserts that law is a particular means to an end, “the enterprise of subjecting human conduct to the governance of rules” (qtd. in Bix 231-32). Fuller’s proposition clearly binds morality and public policy, as law’s means and ends are “human conduct” and “governance.” Both morality and public policy commonly deal with the regulation of human conduct for the governance of the society. But, where law has been absent (or ineffective) in its service, moral values and social conventions encourage people to maintain peace and harmony, thereby making the society a good place to live. Here the role of morality and public policy as a companion and complement to law is inevitable.
Law and Public Policy
Law and public policy contain and complement each other. In the first place, law is a part of public policy. This means that obeying law and helping in its effective functioning is the duty of the people in the society. Law can play its part only when people obey it or realise its efficacy in giving them the service they need. People expect from the state a “full extent of the legal guarantee of freedom of expression … of a right to life, liberty and security … and equal treatment …” (Shiner 438). In this sense, respecting the natural rights of citizens and guaranteeing impartiality in its treatment are at the root of a state’s public policy. Moreover, the state has the duty to enforce morality as a part of its policy. As stated earlier, the cultural values of a community in majority have an influence in the mechanism of the state, and it has the obligation to protect and respect these values. Apart from being the saviour of cultural practices, the law is entitled to enhance the political norms of the state. In a democratic event like an election or a referendum people do not usually make inquiry into the “objective soundness of the winning side” provided the victory follows fairness, because the fact that “the side secured the majority is sufficient” (Shiner 439). This is possible because people respect the policy of the state and give utmost value to the results of processes in which they are directly involved.
The public policy of the state authority — both administrative and judicial — is to act as a legal guardian of all the citizens. The first duty of the state is to make citizens aware of the law itself. The famous maxim “Ignorance of the law is no excuse” maintains that citizens should be aware of the law. With this view, the governments print books of law and make them available to the public, or make law a part of higher education. In addition, authorities run awareness campaigns through the media with a message that every adult citizen, because law influences their everyday life, should have minimum orientation on their country’s legal system. For instance, Nepal Bar Association publicised its awareness programmes through television and radio channels in order to provide legal assistance to the needy Nepalis. As a result of such campaigns, people take it as a requirement to know about the uses of law in their lives, and refrain from violating law and disturbing the values of the society. Moreover, as a guardian, the state has the responsibility to protect the citizens’ rights to observe traditions related to birth, marriage and death, and equally to prevent unpractical and collectively harmful traditions from taking place. This is why the practices like early marriages, forced marriages, desecration of graves, mutilation of human body and racial discrimination are made illegal in all countries.
Public policy is also an important source of law. Certain laws emerge out of the policy of the contracts. This means the state allows citizens to enter into individual contracts. Because of this provision, many social issues do not reach the legal court for an official settlement. For example, individuals run monetary transactions and buy and sell properties without law interfering in these affairs. Even many of the disputes and anomalies related to these contracts are settled within the society itself. But, when these issues reach the court, they may form a basis for a law. They are settled with reference to an existing provision. New cases, on the other hand, evolve new policies which later get incorporated in the legal system. Both positivist and realist schools of thought commonly value these real social conventions as the reliable grounds for law to evolve and operate.
The above discussion shows that law, morality and public policy function in complementarity, as is the case between each to each. Each contributes to the formation and evolution of the other. But this does not mean that one is the only means or end to the other. Law respects, contains and enforces morality. In the same way, morality directs, supports and enhances law. Similar is the nexus between morality and public policy. Morality directs, supports and enhances public policy. Like law, public policy respects, contains and enforces morality. Law and public policy exist in the same relation of interdependence. Law contains, respects and enforces public policy. Like morality, public policy directs supports and enhances law. Thus function law, morality and public policy together as fundamentally intertwined factors working for the accomplishment of human flourishing within a systematically functioning society. To conclude, law, morality and public policy, functioning in correspondence and complementarity, promote the welfare and development of human society under a systematic state mechanism.
- Bix, Brian. “Natural Law Theory.” Patterson 223-40.
- Coleman, Jules L. and Brian Leiter. “Legal Positivism.” Patterson 241-60.
- Greenawalt, Kent. “Legal Enforcement of Morality.” Patterson 475-87.
- Patterson, Dennis. Ed. A Companion to the Philosophy of Law and Legal Theory. Massachusetts: Blackwell, 1996.
- Shiner, Roger A. “Law and Morality.” Patterson 436-49.
- Smith, Patricia. “Feminist Jurisprudence.” Patterson 302-10.
- Weeramantry, C.G. An Invitation to the Law. New Delhi: Lawman Pvt. Ltd., 1998.