Nepal perspective: Law and Morality Supremacy Debate

Laxman Lamichhane

Advocate, Nepal

In the very concept of society where group is dominant and outlives the original members of it. Society has its own fabric and need to be maintained at any cost. Its way of functioning is often compared with organism and also called a system. There have been sought an especial arrangement and observed regularities in society since its evolution. Sociologists strongly portray society as a system because of its self-regulating nature, traceable structure and functions, and interrelated elements having specific performance towards the operation of the whole system. Interestingly, family, law, government, economy, education, politics, religion are some fundamental parts of the society out of many. Who cares about social systems emphasizes on its preservation for the survival of human being.

While dealing with this great system, we need to know about the forces which enjoin it. There is a great debate among legal philosophers that either law or morality keeps upper hand in controlling the conduct of human being in modern society. The natural law school advocates the supremacy of morality whereas the analytical school urges of the positive law. In the words of Kurt Baier, "moral rules are universal rules designed to override those of self-interest when following the latter is harmful to others." Morality is a value-laden concept relating to certain normative patterns which aim at the extension of good and reduction of evil in individual and social life. Morality is called divine law created for the betterment of human being. The moral imperative has been defined as the summons to develop one's potential in a socially responsible manner, to realize one's creative powers to the fullest, and thus to attain true happiness and inner gratification.

It is said that the primary source of moral commands cannot be found located in the autonomous reason of individuals. Ethical systems find their origin to the strong desire of organized groups to create tolerable conditions of social existence. Tenets of social morality are formulated in order to reduce greedy and unconscionable practices, restrain intra-group antagonism, cultivate concern for one's fellow men, and thereby increase the possibilities of a harmonious coexistence.  Proper mental attitude is an important means for the achievement of the very objective of social order, the main purpose of moral precepts is to stimulate socially desirable actions. While referring to an influential theory elaborated by Immanuel Kant, the distinction between law and morals is found in the fact that the law regulates the external relations of men, while morality governs their inner life and motivations.

Social morality may with good reason be looked upon as the recognition of an objective hierarchy of values which are to guide the conduct of human beings towards one another in a given society. Within this hierarchy of moral values, we may distinguish two categories of postulates and principles. The first category consists of requirements of social ordering which are deemed indispensable, necessary or highly desirable for an effective discharge of the tasks an organized society has to cope with such as avoidance of violence and injury, the keeping of faith in the performance of agreements, regulation of family relations, and perhaps some degree of loyalty towards the group. The second category of moral norms includes principles which add greatly to the quality of life and the establishment of closely knit bonds among men, but which demand more of human beings than is regarded necessary for the preservation of the essential conditions of social existence. The values of unselfishness, charity, generosity, benevolence, and loving kindness fall under this second category.

Those doctrines of moral aptness which are considered fundamental and vital for social intercourse will be endowed in all societies with an obligatory character of great strength. This strengthening of their binding force is accomplished by converting them into rules of law. The ban of robbery, physical assaults, rape, and murder, the ordering of relations between the sexes, the interdiction of fraud and bad faith in the conclusion and performance of consensual agreements are examples of such conversions of moral ideas into legal prescriptions.

Does law alone can bear the burden of making society clean from evil? It is a crucial question to be answered here. For a while, one of us may think that from where 'having an obligation' comes from. If 'having an obligation' results from a rule of law, then, it is solely a matter of law. Underlying this is that there is a moral substratum of 'having a sense of obligation', which is not matching with the acceptance of either a legal rule or obligation. Thus, a rule of law may prevent a certain action, which is internalized by a person to the extent that he acknowledges a legal obligation. If he has no sense of obligation with regard to the conduct in question, he may well be inclined to disobey. Every street walker acknowledges that to abide by traffic rules of crossing the road, it is a legal obligation, but vast numbers of them have no sense of obligation with regard to it, which is why this is disobeyed during every minute each day.

The imposition of legal duty and the creation of legal obligation are not the end, for there always remains the underlying moral liberty to obey or disobey; and it is a sense of obligation that inhibits disobedience. A different picture can be drawn from cases where the law leaves people with liberties to act or not as they please, i.e. without constraining duties either way. Freedom of action can be exercised nastily or dutifully. Since the law does not restrain, any restraint on liberty cannot come from law. It can only derive from a moral sense of obligation based on the acceptance of moral rules. The distinction between law and morals and between 'having an obligation' and 'having a sense of obligation' is important, but it is even more important that their relationship should not be left out of account. Law without a sense of obligation is unworkable, which means that any discussion of law as a functioning phenomenon has to include this moral dimension.

Here, I don't mean to underestimate law as it is a major means of social change and control in modern era. No one can deny the role of law in maintaining peace and order in society. So, law and morality are complimentary to each other rather than rivals. Since law has its root in morality and morality gets supported by law with coercive sanctions. With its coercive power law can make things happen whereas morality may only be persuasive as it lacks sanctions. Social relations are deeply rooted and guided by the principles of morality in terms of values, norms and belief. The growing atrocities in the present societies are because of loosing grip of moral values and failure of positive law. Things may be improved with the observance of the true spirit of morality created by human faculty.

The author can be reached at lamichhane.laxman@gmail.com

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