Ethics examines the criteria for judging human actions as right or wrong. From where do such standards come or what are their sources? Moral philosophers have identified laws, rules, regulations and conscience as important sources which guide human ethical conduct. In this chapter, we discuss the above four areas and how they influence ethical behaviour. The first three ideas have different meanings in Politics and jurisprudence on one side and in Ethics on the other.
Our discussion of law will covertwo aspects. First, we look at modern conceptions law. Thereafter, we consider it as it was viewed in medieval times, and especially the ideas of St. Thomas Aquinas. In earlier times, moral systems were designated as (moral) law. The earlier thoughts on law mixed up religious themes, social norms and law. The modern approaches (which arose in response to earlier thinking) seek to disentangle law from morality and religion. The advantage in starting with modern ideas on law is that it will help us in viewing medieval thoughts in proper perspective.
While discussing St. Thomas Aquinas, we avoid repetition of ideas on natural law ethics covered earlier in the chapter on Western Moral Thinkers. We discuss natural law based on the account which Patrick J. Sheraan gives in Ethics in Public Administration: A Philosophical Approach.
By laws, we commonly understand the enactments of legislature. This is secular, as opposed to religious view of law. The concept of law historically arose from religion, philosophy and social
norms. Gradually, the subject of jurisprudence evolved, and sharpened the notions of law used in courts to adjudicatepropertydisputes and criminal offences.
There are many branches of law – criminal law, civil law and laws covering specific sectors like the Companies Act, the Indian Electricity Act and the Environment Protection Act. Laws are divided into two categories as substantive laws and procedural laws. Substantial laws define offences or crimes in terms of their ingredients and prescribe punishments. Procedural laws - like the Code of Criminal procedure or the Code of Civil Procedure – specify the modalities which courts have to follow while dispensing justice. The Indian Evidence Act mainly deals with the types of testimony and documents which are admissible as evidence and the nature of conclusions which courts can draw from evidence.
While considering the idea of law, we should not overlook the Constitution of India. Constitution of any nation is regarded as its fundamental law. All other laws have to be in consonance with the constitution. Besides delineating the framework of government of a nation, a Constitution also embodies the basic values and ethos of a nation. These are known as constitutional values. Broadly speaking, the Preamble to the Constitution and the Directive Principles of State Policy contain the constitutional values.
Austin’s Positive Theory of Law
John Austin propounded a positive theory of law. Law in its essential nature differs from moral and religious principles. Austin’s approach is based on analytical jurisprudence, and tries to remove evaluative or normative terms from discussion. Positivism in legal theory means that: (a) a law is a legal rule and that (b) if passed according to prescribed procedure, law is valid irrespective of its content. In other words, as long as an elected legislature (in modern democracy) debates and passes the law, everyone must follow it.
Austin theory is also known as the command theory of law. Its main features are the following:
• Law is a command from a sovereign (legislature or king or ruler).
• The people are in the habit of obeying a ruler.
• Law is reinforced by sanction or punishment.
• Put simply, laws are orders backed by threats.
• A law, therefore, is the expressed wish of the sovereign and can be distinguished from other commands.
• The sovereign is the person or body whom others habitually obey, and who does not obey others.
The significance of the above theory lies in its exclusion of moral or normative elements from the conception of law. People speak about law as a duty or obligation placed on citizens. Austin tries to eliminate these ethical terms relying instead on the probability of punishment which criminals fear or the ‘habit’ of people to obey laws. He avoids any discussion on the merits of law.
Austin’s positive view of law fails to explain some parts of law. For example, English “customary” laws or Common law includes decisions of judges made according to legal “principles” for which there is no written law. However, European nations which generally follow Roman law tradition have fewersuchelements. Austin defendsthese by usingthe notion of tacit consent of thesovereign;
since the king does not object, he must have consented. Some laws do not fit into Austin’s theory. Thesearelawsthat repeal laws;laws with no penalties;lawsmerelycreatingrightslikecontract acts; and laws defining marriage. Austin calls them declaratory.
Other problems arise from international law and primitive law. There is no sovereign to enact international law. Most legal history recognizes unwritten tribal laws with no formal, legislated code. Austin’s view denies that such law is law. Legal systems have “layers” of law. They treat the constitution and treaties as a “higher” law. Such a law “constrains” subsequent legislation. Austin’s command theory cannot account for the higher laws.
Hart is a positivist though he raised some of the above mentioned objections against Austin. Hart mentions that two categories of rules, called primary andsecondary rules, together form the basis of a functioning legal system. This is similar to the distinction between substantive laws and procedural laws we notedearlier. Studentsshouldcarefullynotethat theterm ‘rule’sometimes as in thiscontext is used as synonymous with law. Primary rules either impose legal obligations, as in criminal law, or they grant powers, as in the power to make a will in the law of succession, or the power to enter into a contract.
Secondary rules enable working of primary legal rules. Hart mentions three types of secondary rules. Rule of recognition gives criteria for identifying primary legal rules for example Acts of Parliament and judicial decisions. Rules of change identify how legal rules can be formed, amended or repealed. For example, an Act of Parliament goes through various readings in the Lok Sabha and Rajya Sabha and needs President’s assent. Rules of adjudication enable the courts not only to settledisputes,but also to interpret the law.
Hart does not accept any necessary connection between law and morality. In other words, the validity of a law is not dependent upon its moral acceptability. Even a morally repugnant law may be legally valid. However, that does not mean one must obey laws that are morally repugnant. Obedience remains a matter of personal decision or conscience.
Both theories of positive law we discussed deny that law can be restrained by morality. It is a different matterthat manylaws rest on a society’s moral and cultural consensus. Positivetheoriesof law fail to capture the idea of moral ideal implicit in many views of law.
Lon Fuller shares the view that there are necessary, substantive moral constraints on the content of law.But Fullerbelievesthat law is necessarilysubject to a procedural morality.Lawsubjectshuman conduct to various rules. According to Fuller, law seeks to achieve social “order through subjecting people’sconduct to the guidanceof generalrules by whichtheymaythemselvesorienttheirbehavior”.
Fuller’s functionalist conception of lawimpliesthat nothingcan count as law unless it is capable of performing law’s essential function of guiding behaviour. In order to achieve this task, a system of rules must be:
(i) expressed in general terms;
(ii) publicly promulgated;
(iii) prospective in effect;
(iv) expressed in understandable terms;
(v) consistent with one another;
(vi) within the powers of the affected parties;
(vii) not subject to frequent changes so that people cannot rely on them; and
(viii) administered in a manner consistent with their wording.
On Fuller’s view, no system of rules that fails minimally to satisfy these principles of legality can achieve law’s essential purpose of securing social order through the use of rules that guide behavior. If rules are not made known or not clear, they cannot guide behaviour because people will not know what rules require.
According to Fuller, law is moral in two aspects: it promotes social order and it does this by respecting human autonomy because rules guide behaviour. Therefore the above principles of legality constitute a morality. Some writers argue that Fuller’s rules ensure the efficacy of law or its proper implementation, and they are not moral ideas. However, most of Fuller’s above mentioned eight principles stand for moral ideals of fairness. They do not however operate as moral constraints on the content of law.
The terms ‘rules’ and ‘regulations’ have the same meaning in Ethics. However, the two terms are sometimes given different meanings in legal contexts. Every law contains a provision for making rules necessary for its implementation. The rule–making powers are with government’s executive branch. Rules cannot go beyond the law and are subject to ratification of legislature. Rules are subordinate legislation.
However, Hart and Fuller use the term ‘rule’ in a sense equivalent to law. Naturally, students have to make out from the context of a question or discussion as to which meaning is appropriate.
The term ‘regulation’ refers nowadays to regulations which regulatory authorities – like Central Electricity Regulatory Commission – issue for regulating a particular sector like power, insurance or telecom. However, this is a current usage connected with regulating certain economic activities. But in Ethics, the terms ‘rule’ and ‘regulation’ have the same meaning.
Differences between Laws and Rules
Regulations focus on or relate to individual good whereas laws seek to increase public good. Laws can be enacted only by those who exercise sovereignty (or state power) or the lawfully constituted government (or its legislative wing). Regulations can be laid down by one’s superiors, by organizations or by head of a family. Rules or regulations (in wider moral contexts) can be laid down by private persons andentities.Laws of a nationoperate withinitsterritorialboundaries.Citizenswhen abroad are not governed for most purposes by their national laws. Rules or regulations prescribed, for example, in official codes apply to government servants even when they are abroad. Similarly, rules whichmonksaccept as part of theirreligiousorder,apply to themevenoutsidethecountry. Students should note that the conception of rules or regulations we outlined is from Ethics and not from Law. But there could be commonalities between the ethical and legal conceptions.
In the preceding sections, we discussed the positive theories of law and also covered rules. But the conception of law has much wider connotation and associations in Ethics. This view of moral law is the outcome of centuries of philosophical and ethical speculation. Moral law is defined in old Ethics books as a general rule of right living; especially such a rule or group of rules conceived as universal and unchanging and as having the sanction of God’s will. We consider in this regard the views of St. Thomas Aquinas who was a great Roman Catholic theologian (i.e. one well versed in religious discourse) of the medieval times. He naturally subscribed to Christian doctrines which to their followers are truths revealed by God. They rest on faith and not on empirical ideas. Aquinas however used Aristotelian deductive logic to apply reason in the service of faith, that is to say, belief in God and associated religious ideas including morality. [We may note in passing that many ‘rationalists’ direct their fire at beliefs of Hindu religion. However, religious beliefs, especially belief in God’s existence, of what Arnold Toynbee describes as ‘higher religions’ stand on very similar footing; if subjected to logical or scientific scrutiny, they disappear into thin air. Rationalists cannot pick and choose as between different religions; or accord especially favourable or unfavourable status to any religion.]
Types of Law according to Aquinas
Aquinas distinguishes four kinds of law: (1) eternal law; (2) natural law; (3) human law; and (4) divine law. Eternal law comprises laws that govern the nature of an eternal universe. Eternal law is derived from the idea of God as the ruler of the world. It can refer to all laws (including to laws of nature according to some writers) by which the universe is ordered.
Divine law is concerned with those standards that must be satisfied by a human being to achieve eternal salvation. One cannot discover divine law by reason; its principles can be known only through divine revelation. Aquinas cites as examples Old Testament of Bible (which Jews follow) and the New Testament (which Christians follow) as divine laws.
The natural law consists of those principles of the eternal law that govern the behaviour of beings endowed with reason and free will. It is the ‘participation of the eternal in the rational creature’. It is ‘an imprint on us of the divine light”. According to St. Paul, the natural law is written in the hearts of men. We can understand natural law as divine moral ideas found in human heart.
How can we be sure of the existence of natural laws? One answer is that men, from ancient times, irrespective of the level of their civilization, distinguished between right and wrong actions. They also believed that men should pursue good and give up evil. As these ideas arose along with the emergence of mankind, they can be regarded as part of their mental makeup.
Aquinas says that human law is made by men: it is an ‘ordinance of reason for the common good, promulgated by him, who has the care of the community’. It is valid only insofar as it matches with the natural law; or in Augustine’s famous remark, an unjust law is really no law at all. This is the defining characteristic of the natural law theory. According to Blackstone, in natural law theory: 1) there can be no legally valid standards that conflict with the natural law; and 2) all valid laws derive whatever force and authority they have from the natural law.
Aquinas mentions the primary, secondary and tertiary principles of natural law. Primary principles of natural law are universal rules of conduct and can be easily perceived by human reason. Examples of these principles are doing good, avoiding evil and following the dictates of reason. Human beings have a natural love of good and abhorrence of evil. All the remaining moral principles follow from the primary principles.
Secondary principles can be derived without much difficulty from the primary principles. A person of ordinary intelligence without ‘invincible’ ignorance can easily know them. Aquinas classifies ignorance as vincible and invincible. ‘Vincible’ ignorance, unlike invincible ignorance can be easily overcome with a little effort – which men need to make. From the primary principle of being good, it follows that one should respect elders and be considerate to others.
Tertiary principles of natural law cannot be easily derived from the primary principles. They often presuppose involved reasoning. People who are unaware of these principles incur no blame for it is a case of ‘invincible ignorance’. An example is of a person who believes it right to cheat a rich man to help the poor. The three levels of natural law explain why people arrive at different moral conclusions on even similar matters. Aquinas says that in theoretical thinking while it is easy to see general principles or common notions, the conclusions which follow as their implications are hard to grasp. Similarly, while men subscribe to common principles of actions, their responses vary in similar particular instances.
Aquinas argues that natural law not only tells what is good but also casts a moral duty on us to follow it. We are under a moral obligation to obey the commands of natural law. It is a universal law and applies to the entire humanity irrespective of race, nation, religion and sex. As we have noted, people may interpret or understand natural law in different ways. But they have to follow it according to their best reflective understanding. In practical terms, this means that people should think carefully about the moral aspects of their actions.
Infraction of laws entails sanctions and punishments. But the consequences of disobeying the natural law are unclear. This is true in case of all moral laws which lack the coercive power of legal enactments. For instance, if one violates the Indian Penal Code by committing theft, he will, upon conviction, be imprisoned. Normally, legal offences are a subset of moral lapses. To the extent a moral violation is also a legal offence, penal law will punish the offenders. But if one violates the command to love one’s neighbour, secular law will not punish him. All religions mention that sinners will suffer in hell. But such concepts are non-empirical and fall outside the domain of logical discourse.
Civil lawsare different from canonical lawswhichapplied to churches. We will nowconsider positive, manmade civil laws. Aquinas discusses the relation between positive civil laws and the natural law. Interestingly, he holds that positive civil laws partake of the character of law in so far as they are derived from the natural law. When they depart from the natural law, they are perversions of law. We can ignore his discussion on the ways in which civil laws can differ from the natural law. However, he makes a point that men are under no obligation to follow those parts of civil law which fail to
conform to natural laws. The medieval theological context of the discussion is no longer relevant. Butwhat is relevant is therevolutionaryobservationthat undercertaincircumstances peoplewillbe justified in defying the law. In modern day language, this is an issue of legitimacy of laws.
According to Aquinas, laws have to meet the following conditions to qualify for people’s obedience.
¤ Civil laws have to conform to the natural law. They should not prescribe what the natural law prohibits or forbid what the natural law prescribes.
¤ Civil laws are made by a lawful government with proper authority.
¤ They are reasonable and lie within the physical and mental capacities of men.
¤ They are not for individual but general social good.
If a law fails to meet any one of the above conditions, citizens need not obey it. This is the basic idea which underlies the concept of civil disobedience. In civil disobedience, people disobey unjust laws which though duly enacted, violate higher moral principles. Thus, during the Salt Satyagraha, Mahatma Gandhi violated the Salt laws then in force. Similarly, pro-life groups in many Western nations oppose laws which permit abortion.
We may note here the distinction between being above law and outside the law. A group of philosophers held that the sovereign or the law maker is above the law on the ground that there is no one to punish him. Aquinas argued that the sovereign is not above law since he can elect to obey it. Aquinas says, “whatever law a man makes for another, he should keep himself”. The modern view is that no one is above law. ‘Outside the law’ can mean illegal actions and/or actions in locations where law does not apply. As we have already seen, laws only apply to those who live within the territorial jurisdiction to which they apply. Indian law will not apply to those in Sweden.
Relevance of the Ideas of Aquinas
Next, we will consider conscience as a source of ethical guidance. Before that, we need to make a few observations on the discussion so far. Readers may feel that we have discussed law mainly on the basis of Aquinas’s account of Roman Catholic doctrines. However, the ideas of Aquinas can be seen more widely as indicating how moral laws can guide human action. His Roman Catholic theories can be replaced, for example, with Hindu or Buddhist ethical principles, without seriously affecting the validity of the argument. The central point is that laws derive their force not from the powers of the king or the legislature, but by reflecting moral principles dear to human heart. Many people attribute divine origin to such principles.
Modern thinkers have abandoned the concept of natural law. It is considered a part of medieval metaphysics. Further, many people, especially in the west, have lost religious faith. Even otherwise, there is a tendency to replace religious morals with secular (in the sense of non religious) ethics. But many secular morals coincide with religious morals.
Modern Normative Reaction to Positive Theories of Law
Austin’s positive theory of law leads to odd consequences. As Hart pointed out, it could imply that rule of a mob of gangsters on a remote island is lawful. This happens because Austin reduces legal
obligations to habits and to calculation of probabilities of risk from disobeying laws. Hans Kelsen tries to resolve this problem. He adopts the positive view, but regards law as socially constructed and as not derived from natural law or any higher source. Unlike natural law, it is dynamic and keeps changing.
Kelsen recognizes that law needs a normative base on which it can rest. He does not seek it in ordinary morals. He calls the basic norm as ‘logical constitution’. Laws can be created but the basic norm states how they can be created and changed. Only those created in accordance with basic norm will be valid. He regards basic norm as an accepted custom: “when the custom through which the constitution has come into existence or the constitution-creating act consciously performed by certain human beings, is objectivelyinterpreted as a norm-creating fact ...”then a basic norm exists. In way, Kelsen seems to regard constitution as providing the basic norms for laws.
In this regard, one may raise the question of morals relevant to public servants in performing their official tasks. For this purpose, we refer to values embedded in the constitution. As we mentioned before, they are found in the Preamble and the Directive Principles of State policy. We summarize them below.
Values included in the Preamble are:
¤ Socialism, secularism and democracy
¤ Social, economic and political justice
¤ Liberty of thought, expression, belief, faith and worship
¤ Equality of status and of opportunity
¤ Fraternity and dignity of the individual
¤ National unity andintegrity
Directive Principles
The Directive Principles of State Policy are ‘fundamental in governance of the country’. Government has to follow these principles while making laws.
1. Equitable distribution of wealth or the socialist pattern of society and equal pay for equal work for both men and women.
2. Provision of adequate means of livelihood to all citizens, men and women.
3. Provision of employment to all.
4. Free and compulsory education for children.
5. Living wage for workers.
6. Protection of childhood and youth against exploitation and against moral and material abandonment.
7. Organization of village panchayats as units of self-government.
8. Prohibition of the consumption, except for medical purposes, of intoxicating drinks and of drugs injurious to health.
9. Organization of agriculture and animal husbandry on modern and scientific lines.
10. Promotion of international peace and security and maintenance of just and honourable relations between the nations of the world.
11. Social welfare measures.
This does not mean that public servants can ignore ordinary moral rules applicable to all in personal and social life. The above values enshrined in the constitution will help them in many official situations which involve ethical questions.