Law and morality: contact, difference, the positivist separation, Fuller, the Hart-Devlin debate and the Indian cases

LUG-102 Jurisprudence — Legal Method, Indian Legal System and Basic Theory of Law, Unit I: Law and morality. · LLB · 60 min

What morality is and how it has stood to law from the undifferentiated dharma of early societies to the modern separation; the points of contact and of difference (Salmond, Paton); the positivists' insistence that law as it is must be kept apart from law as it ought to be (Austin, Kelsen, Hart); the natural lawyers' reply (Fuller's inner morality of law); the Hart-Devlin debate over the Wolfenden Report and Shaw v. DPP; morality as a source and a limit of Indian law (s. 23 of the Contract Act, Articles 19(2) and 25) and the constitutional-morality cases Navtej Singh Johar, Joseph Shine, Shah Bano and Sabarimala. It answers the 2025-26 question on the relationship between law and morality and the 2018-19 question on law as it is and law as it ought to be.

Objectives

Define morality and positive morality and trace the historical relation of law and morals.
Set out the points of contact and the points of difference between law and morality in a form usable in the examination.
Explain the positivist separation thesis, Fuller's inner morality of law and the Hart-Fuller and Hart-Devlin debates with Shaw v. DPP.
Apply the debate to Indian law: s. 23 Contract Act, Articles 19(2) and 25, and the constitutional-morality judgments.

Slides

What morality is
The historical relation: from one to two
Points of contact
Points of difference
The positivist separation: Austin, Kelsen, Hart
Fuller: the inner morality of law
The Hart-Devlin debate and Shaw v. DPP
Morality as a source and a limit in Indian law
The Indian cases: constitutional morality
"Law as it is" and "law as it ought to be"

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