Morality and Law
Chandan Goswami 11 Nov 2019

Judicial independence, rule of law, judicial discretion, these are derivative applications of the notion of justice which is understandable once the primary application of justice to matters of distribution and compensation is understood.

Often we have heard that judges should decide cases according to justice and not according to the law. But what does the question mean? Is the question confusing in itself?

Since ancient times, more particularly since the time of Plato, legal and political theorists have wrestled with the problem of whether justice is part of law or is simply a moral judgement about law.

The terms that we, as lawyers, frequently use in the praise or condemnation of law are the words “just” and “unjust.” But what do these terms mean? Are they in themselves coextensive?

This question prompted Bharat Chugh, a Partner Designate in a top tier firm, Luthra & Luthra to write a poem during his stint as the Railways Magistrate. Chugh during his stint as a Railway Magistrate exonerated a tea-seller and others like him in most of the cases that he dealt with during his tenure.

It is imperative that the law-creating powers which are ascribed to the judges to regulate cases are subject to many constraints narrowing his choices but there will be points where the existing law fails to dictate any decision as the correct one and to decide cases the judge must exercise his law-making powers. He must decide according to his own beliefs and value but in doing so he must always have some general reasons justifying his decision and must act as a conscientious legislature would.

As the famous writer and scholar H.L.A Hart once said that, “just and unjust are more specific forms of moral criticism than good and bad or right or wrong which is plain from the fact that we might intelligibly claim that a law was good because it was good, or that it was bad because it was unjust, but not that it was just because good, or unjust because bad.”

According to Hart, moral and legal obligation may be similar in some situations and thus, may overlap. Moral and legal rules may apply to similar aspects of conduct, such as the obligation to be honest and truthful or the obligation to respect the rights of other individuals.

Edmund Burke, once famously said, “morality is more important than law because law depends on morality.” The judges should be entrusted the law-making powers to deal with disputes which the law fails to regulate.

It is true that in India where the legislature’s powers are limited by a written constitution and the courts have extensive powers of review, a democratically elected government may find itself not capable to reverse a piece of judicial legislation.

Though morality and law are separable, they need to meet at some point in order to reach the far ends of justice.

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