Legal Method CIA-I

LEGAL METHODS

Continuous Internal Assessment-I

Ethical and Moral Dimensions of Law and Social Change in Contemporary
Society: A Critical Analysis
Submitted By
Arzoo Kedia
Roll no. 84
Semester-I, Section-C
B.A. LL.B (Hons.)
Submitted To
Dr. Rajput Shraddha Bhausingh
Assistant Professor
Legal Method
INTRODUCTION
Morality, ethics and law have a complex relationship. Some categories of law like
responsibility, penalties, compensation, fault, justice and rights etc. may lead us to believe
that morality and law are connected. This critical analysis will attempt to explain the intricate
connection between legal system and how it affects the values, ethics and morality off a
society and in the same way how customs, beliefs and ethical values of society influence the
interpretation, formulation and execution of laws.

Role of morals and ethics in history of Law making

“Values are the life-blood of law”1. Judges and legislators when making laws don’t work in
isolation. They are influences by values of society. Throughout history, there has been
contrasting views on the relation between law and morals. In the beginning of society ,
morals and law was seen to be the same. Later, law and morals were considered different and
law was said to derive it’s authority from state. In the seventeenth and eighteenth century,
linkages of law and moral again became popular. In the nineteenth century however, morals
were not included in study of law. In modern times, all the social sciences are said to overlap
each other in some way. “Morals are an evaluation of interests. Therefore, jurisprudence is a
branch of applied ethics and law-making is not primarily a juridical but an ethical process.” 2
Law as driver of social change

“All the laws against violence and frauds are grounded in the morality of the people and, in
turn, the morality of the people is influenced by those law.”3
Ethics and morals are based on values of society and at times these values can be restricting
to personal freedom. Therefore, it is important for law to perhaps change what is socially
acceptable for the advancement of society. For example, same sex relationships are still
considered immoral by some but it was the job of law to ensure personal dignity and freedom
of all its citizens. Another example can be slavery, it was legal once and was considered to be
ethical by most but in today’s time it is a barbaric idea. Law holds power to alter social
behaviour, cases like brown v. board of education4 in US significantly changes societal
practices and outlook.
In the condition of conflict of law and morals, ideas of fairness, equality and justice should
play a particularly important part.
Cultural pluralism and Indian context

Equality before law, freedom of religion, speech etc are principles upon which Indian law is
based on, these are also the values which cherished by society. "we cannot regain our past
1
ROLE OF MORALITY IN LAW-MAKING: A CRITICAL STUDY on JSTOR, https://www.jstor.org/stable/43952105
(last visited Aug 28, 2023).
2
The Elements of Social Justice (Routledge Revivals) | L. T. Hobhouse |,
https://www.taylorfrancis.com/books/mono/10.4324/9780203871294/elements-social-justice-routledge-
revivals-hobhouse (last visited Aug 28, 2023).
3
ROLE OF MORALITY IN LAW-MAKING: A CRITICAL STUDY on JSTOR, supra note 1.
4
Brown v. Board of Education (1954) | National Archives,
https://www.archives.gov/milestone-documents/brown-v-board-of-education (last visited Aug 29, 2023).
glory unless we realize the importance of morality in our present legal system.” 5 A valid
custom should not be immoral or against public policy. There have been numerous cases
where a custom has been repealed on the grounds of immorality. In Balusami v. Balakrishna6
marriage to daughter’s daughter was held immoral. “An agreement is unlawful for
immorality.”7 The modern law places less importance of moral and ethical values and instead
focuses more on legal rights and obligations. To avoid abuse of such factors, the ground
“decency and morality” in article 19(2) of the Indian Constitution was included. The moral
values of society can be preserved and upheld by judiciary by intervention, corrective actions
and check on legislature and executive authorities to prevent them from violating the morals
and ethics of society. “The court said that in case of a conflict between two fundamental
rights available under article 21, the right which would advance the public morality or public
interest would alone be enforced through the process of the court.”8
Who’s morals?
Morality is subjective. What may be immoral to some may be moral to others and vice versa.
There are endless examples to prove this point, like the abortion and gun ownership debates
in USA. A lot of laws came into existence because they hold religious or cultural value , but
they stay into existence because it has been woven into our minds as to be moral or ethical.
Let’s take the issue of abortion as an example, until the 1970s abortion was illegal in India.
This was a product of Victorian English morality as abortion is not a controversial religious
or cultural topic in context of India. In the mid 1960s Shantilal shah committee was created,
in 1964 the committee suggested the liberalisation of abortion laws in India. In 1971 abortion
was legalised under MTP act. But due to the taboo around pre-marital sex abortion for
married women was still a challenge. In 2022, a court judgement eliminated this distinction
between married and unmarried women on their right to safe abortion. It chose personal
freedom and dignity and recognised the mental trauma that an unwanted pregnancy could
cause.
Some historians have argued that liberalisation of morals has led to shift from public
responsibility to private virtue. But without communities, there is no such thing as private
virtue but individualism. Liberalisation of morals has abondened us of community and
traditions. Alasdair MacIntyre asks, “how is community- familial, religious, or other- to
flourish in the larger society?”9
Conclusion
From the discussion, it can be concluded that morals and ethics in the process of law making
and execution was never excluded. Morals apart from legal sanction is another factor which
ensures obedience of law. Law tends to change as moral changes. In a sense, law is a branch
of morals. Whenever there is a conflict between law and morality the factors kept into mind
5
N. V. PARANJAPE, STUDIES IN JURISPRUDENCE AND LEGAL THEORY (2022).
6
Baluswami v. Balakrishna AIR 1957 MAD 97 | PDF | Lawsuit | Marriage,
https://www.scribd.com/document/543337456/Baluswami-v-Balakrishna-AIR-1957-MAD-97 (last visited Aug
29, 2023).
7
Indian Contract Act, 1872, TO DEFINE AND AMEND CERTAIN PARTS OF THE LAW RELATING TO CONTRACTS. (1872),
http://indiacode.nic.in/handle/123456789/2187 (last visited Aug 29, 2023).
8
ROLE OF MORALITY IN LAW-MAKING: A CRITICAL STUDY on JSTOR, supra note 1.
9
Gerard Clarke, Law and Morals: Which Law? Whose Morals?, 83 STUDIES: AN IRISH QUARTERLY REVIEW 64 (1994).
should be that a law shapes the future of our society and is not a short-term problem to deal
with.

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LEGAL METHODS

Continuous Internal Assessment-I

Role of morals and ethics in history of Law making

Law as driver of social change

Cultural pluralism and Indian context

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