MAHARASHTRA NATIONAL LAW UNIVERSITY MUMBAI

JURISPRUDENCE
(SYNOPSIS)

“LEGAL POSITIVISM AND LEGAL MORALISM:

TWO SIDES OF THE SAME COIN?”

Submitted to: Prof. Upmanyu Sengupta

Prof. Abhijit Rohi
Prof. Varada Sambhus

Submitted by: Bodhisattwa Majumder

2016018.
1. BACKGROUND
Positivism is a school of thought which ascribes to the belief that all facts are based on data
‘posited’ by experience and beyond that any possible assertion requires pure logic and
mathematics. It does not judge a law by its merits and law is simply what has been posited by
the relevant authorities. Austin, Bentham, Kelsen, Devlin and Hart have been associated with
this school of thought. The positivist thesis does not say that law's merits are unintelligible,
unimportant, or peripheral to the philosophy of law. It says that they do not determine
whether laws or legal systems exist. Whether a society has a legal system depends on the
presence of certain structures of governance, not on the extent to which it satisfies ideals of
justice, democracy, or the rule of law. What laws are in force in that system depends on what
social standards its officials recognize as authoritative; for example, legislative enactments,
judicial decisions, or social customs.

This paper deals behind the debate over legal moralism and the extent to which a moral code
should shape our laws. India, a country that the courts have deemed homosexual acts
criminal, because they are considered as “unnatural” by the makers of the Indian Penal Code
in the seventeenth century, the vox populi of the majoritarian regime really influences in
setting the moral standards and ultimately the laws of the land. Apparently in common law,
public policy always prevails over private rights. Are there any real and sensible connection
between law and morality? Justice is a principle target that laws seek to achieve, but there are
no laws that obliged the judiciary to achieve justice in all cases.1 If law and morality is
connected, laws are equating to morals, and justice is a moral obligation, then they should be
no injustices; this is absolutely impossible. Even though the existence of a legal system in
any sizeable society is essential for the realization of fundamental moral values, law is not
inherently moral either in its effects or in its motivational underpinnings. The vast majority of
the similarities between law and morality are utterly trivial, but a small proportion of them
such as the normative legal propositions and moral propositions are significant.

The paper follows the hypothesis that there is a necessary connection between law and
morality, and the criminal laws are mere sanctions which posit the moral outlook of the
society. It analyses and traces the debate between Hart and Devlin over the Wolfenden
Committee Report which distinguished between Private and Public morality. While Devlin’s

1
Kekes, John. "The Enforcement of Morality." American Philosophical Quarterly 37, no. 1 (2000): 23-35.
http://www.jstor.org/stable/20009982.
 views were contradiction to the Report and conferred that criminal law must respect and
reinforce the moral norms of society in order to keep social order from unraveling, Hart
raised a clear line of distinction which must exist between the Laws of the Land and Moral
aspirations of the society.2 This paper also determines to analyze the recent Right to privacy
Judgement3 which recently paved the way for a Individualistic approach to morality instead
of favoring the majoritarian regime, by declaring privacy a fundamental right that protects
individuals from arbitrary state interference and prevents the state from being totalitarian. Its
definition of privacy and dignity of an individual has far reaching implications on the rights
of LGBTQI individuals for the preservation of personal intimacies, the sanctity of family life,
marriage, procreation, the home and sexual orientation, thus redefining the morality aspect
with an individualistic outlook.

2. RESEARCH QUESTION

2.1.Whether the Legal positivism has its relevance in contemporary world?

2.2.Whether Legal Positivism synonymous to Legal Moralism?

3. RESEARCH METHODOLOGY
Nature of research work: This topic is a “Doctrinal” work. Doctrinal research includes
studying books and established literature and not actually going to the field and doing
empirical research.
Source of research work: The sources of this project are both primary (bare acts, statutes, etc)
and secondary sources (books given by different authors, journals, internet, etc). It intends to
examine the legislations, the institutions and the constitution to relate to the theories of Legal
Positivism, with a special focus to Wolfenden Committee Report and Devlin’s Critique of the
same.

4. THEORETICAL FRAMEWORK
 THE WOLFENDEN REPORT The Wolfenden Report was commissioned to study about
prostitution and sodomy in order to see what sorts of principles should be put into play so that
there was some rationale to making homosexuality illegal without making premarital sex or

2
Hart, H.L.A (1983). Essays on Jurisprudence and Philosophy. Oxford: Clarendon Press
3
Justice K.S.Puttaswamy(Retd) v. Union of India (2017) SCC online SC 1462
 certain sex acts performed by married couples illegal.4 The committee concluded that the
function of the criminal law is to preserve public order and decency, to protect the citizen
from what is injurious, and to provide sufficient safeguards against exploitation and
corruption of others, particularly those who are especially vulnerable. The function of the law
to intervene in the private lives of our citizen, and the concept of private morality must not be
governed by laws.5
 PATRICK DEVLIN: Devlin maintains that function is simply to enforce a moral principle and
nothing else. Devlin claims that it is not possible to set limits to the power of the State to
legislate against immorality. According to him, a society of any sort is community of ideas,
not only political ideas but also moral ideas about the way its members should behave and
govern their lives. And whatever threatens those common bonds threatens society and the
Society has a right to protect itself against threats to those common bonds.6 It is no more
possible to define a sphere of private morality than it is to define one of private subversive
activity. An established morality is as necessary as good government to the welfare of
society. Therefore, Society has a right to protect itself against anything that threatens its
shared morality.
 H.L.A. HART critically examines Devlin’s view of the nature of morality, especially his the
notion that reasoning or thinking has much to do with morality. Hart’s basic point is Devlin’s
view obscures the points at which thought is needed before we turn popular morality into
criminal law. He is more inclined to accept the liberal doctrine elucidated by Mill, especially
in regard to harm where we must ask whether a practice which offends moral feeling is
harmful.7 Devlin provides no empirical support for the central claim that deviations from
public morality threaten society. Hart rejects Devlin’s analogy between treason and
homosexuality. He also claims that Devlin has mistakenly assumed that society is to be
identified with its morality and that there is a shared and identifiable public morality.

4
McNamara, Vincent. "Law and Morality." The Furrow 30, no. 11 (1979): 675-85.
http://www.jstor.org/stable/27660831.
5
"Private Consensual Homosexual Behavior: The Crime and Its Enforcement." The Yale Law Journal 70, no. 4
(1961): 623-35. doi:10.2307/794265.
6
Cane, Peter. "Taking Law Seriously: Starting Points of the Hart/Devlin Debate." The Journal of Ethics 10, no.
1/2 (2006): 21-51. http://www.jstor.org/stable/25115849.
7
Hart, H.L.A (1958). “Positivism and the Separation of Law and Morals,” 71 Harvard Law Review 593 repr. in
his Essays in Jurisprudence and Philosophy (1983). Oxford: Clarendon Press.
 5. LITERATURE REVIEW
 According to BENTHAM and AUSTIN, law is a phenomenon of large societies with a
sovereign: a determinate person or group who have supreme and absolute de facto power who
are obeyed by all or most others but do not themselves similarly obey anyone else. This
imperatival theory is positivist, for it identifies the existence of legal systems with patterns of
command and obedience that can be ascertained without considering whether the sovereign
has a moral right to rule or whether his commands are meritorious.
 HANS KELSEN defines law as characterized by a basic form and basic norm. The form of
every law is that of a conditional order, directed at the courts, to apply sanctions if a certain
behavior is performed. On this view, law is an indirect system of guidance: it does not tell
subjects what to do; it tells officials what to do to its subjects under certain conditions. He
maintains that law is normative and must understood as such. The condition for interpreting
any legal norm as binding is that the first constitution is validated by the following “basic
norm:” “the original constitution is to be obeyed.” Now, the basic norm cannot be a legal
norm -- we cannot fully explain the bindingness of law by reference to more law. It follows,
then, that a legal system must consist of norms all the way down.

 H.L.A. HART emphasises on the normative foundations of legal systems and states that the
ultimate criterion of validity in a legal system is neither a legal norm nor a presupposed norm,
but a social rule that exists only because it is practiced. Law ultimately rests on custom:
customs about who shall have the authority to decide disputes. It is a standard for guiding and
evaluating their own and others' behaviour, and this use is displayed in their conduct and
speech, including the resort to various forms of social pressure to support the rule and the
ready application of normative terms such as “duty” and “obligation” when invoking it .
According to him, Law is a distinctive form of political order, not a moral achievement,
and whether it is necessary or even useful depends entirely on its content and context.
Hart thinks that there is only a prima facie duty to obey, grounded in and thus limited by
fairness so there is no obligation to unfair or pointless laws

 DWORKIN suggests that we should abandon the Hart-Devlin debate and concentrate of
Liberties. If a behaviour is a Basic Liberty (like sex), this should never be taken away, even
if someone has a different way of 'doing' sex e.g. R v. Brown (The Spanner Case) General
liberties could be restricted if they cause harm.8

8
Dworkin, Ronald (1978) Taking Rights Seriously. Cambridge MA: Harvard University Press.
6. BIBLIOGRAPHY

6.1. BOOKS
 Julius Stone, Legal System And Lawyer’s Reasoning, (2nd ed., 2004).

 Salmond on Jurisprudence, P J Fitzgerald, Twelfth edition, 2010

 R W M Dias, Jurisprudence, (5th ed. 1994)

6.2. JOURNALS

 Dworkin, Ronald (1978) Taking Rights Seriously. Cambridge MA: Harvard University
Press.
 Hart, H.L.A (1958). “Positivism and the Separation of Law and Morals,” 71 Harvard
Law Review 593 repr. in his Essays in Jurisprudence and Philosophy (1983). Oxford:
Clarendon Press.
 Hart, H.L.A (1983). Essays on Jurisprudence and Philosophy. Oxford: Clarendon Press
 McNamara, Vincent. "Law and Morality." The Furrow 30, no. 11 (1979): 675-85.
http://www.jstor.org/stable/27660831.
 "Private Consensual Homosexual Behavior: The Crime and Its Enforcement." The Yale
Law Journal 70, no. 4 (1961): 623-35. doi:10.2307/794265.
 Kekes, John. "The Enforcement of Morality." American Philosophical Quarterly 37, no.
1 (2000): 23-35. http://www.jstor.org/stable/20009982.

6.3. CASE LAWS

 Justice K.S.Puttaswamy(Retd) v. Union Of India (2017) SCC online SC 1462

 R v. Brown [1994] 1 AC 212