Do Moral Values Serve As Useful Function For The Judiciary?

Posted on July 13, 2011 in Specials

By Shailza Sharma:

“The law is the witness and external deposit of our moral life”. – Oliver W. Holmes, The Path of the Law

Moral values reflect the true intentions of a person. Moral values also impose obligations and withdraw certain areas of conduct from the free opinion of the individual as he likes (2). Not only do moral values control the conduct of a person, they also facilitate the process of decision making for a judge (3). H.L.A Hart explains that “all rules have a penumbra of uncertainty where the judges must choose between alternatives” (4). Thus, this vacuum between the written law and that penumbra of uncertainty is filled by the moral insights of a judge.

Hart, in his article states that Utilitarians have always believed that ‘the development of legal systems had been powerfully influenced by moral opinion, and conversely, that moral standards had been profoundly influenced by law, so that the content of many legal rules mirrored moral rules or principles (5). The most prominent example of law being influenced by morality is borrowing from the text of the Ten Commandments such as ‘Thou shall not kill’ and importing it into making murder a criminal act. An ambiguity presented in this example is that the law might be that killing is a criminal act but history is witness to the fact that the morality of a single human being (Hitler in the Nazi regime) can validate the killings of innumerable Jews; in such a regime morality of a judge or for that matter the distinction between law and morality finds no place. Conversely, the initiative of law makers to abolish untouchability in India presents a good example of how law has been successful in influencing the morality of people.

Further, there are laws which a statute making power would not dare to enact, even in the absence of written constitutional prohibitions, because the community would rise in rebellion and fight; and this gives some plausibility to the proposition that law, if not a part of morality, is limited by it (6). In India the debate regarding the adoption of a Uniform Civil Code explains this proposition. The whole purpose and intention behind customary laws in India is to preserve the traditions and moral values of every community; this is a situation where the morals of a community supersede the law making process by the legislators.

In order to articulate the importance of the simple act of legal interpretation by a judge we need to appreciate the fact that ‘legal interpretive acts signal and occasion the imposition of violence upon others’ (7) and these acts of interpretations aided by moral values as explained earlier sometimes fill the gap between the black letter law and cases which fall under the penumbra of uncertainties. The flipside to this point is elucidated by Fuller in his critique of Professor Hart regarding the fact that there exists such a thing called the immoral morality and there are many standards of ‘what ought to be’ that can be called moral (8). Fuller goes on to say that “this would be true even in a society devoted to the most evil ends, where the judge would supply the insufficiencies of the statute with the iniquity that seemed to him most apt for the occasion” (9). This leaves room for infusion of the morals of a judge into laws that do not clearly define their purpose or even in cases where interpretations of the judge can lead to creation of violence.

Take for instance, the case Tukaram v. State of Maharashtra (10), where a young girl of 14-16 years of age was allegedly raped and the Supreme Court reached the decision that the accused could be set free. Both in the Sessions Court and the Supreme Court there was a lively discussion regarding the character of the poor victim. The judges referred to her as a ‘shocking liar’ and commented that ‘she had cried rape in front of the gathered crowd only to appear virtuous’.

Also, all the male judges on the bench seemed to be bothered by the fact that Mathura (the victim) was habituated to sexual intercourse before marriage. Well, in order to draw a nexus between this example and the fact that judges are influenced by a certain moral conduct in society we need to understand that the Indian society has always looked upon pre-marital sex as a taboo and that apparently the (lose) character of a woman goes a long way in determining whether she is a rape victim or not. As best expounded by Carol Smart in her essay ‘Woman of Legal Discourse’, ‘law is sexist’ which means that law actively disadvantages women by allocating to them fewer material resources, or by judging them by different and inappropriate standards (11).

Also, that ‘law is male’, meaning that most lawmakers and lawyers are indeed male (12). These criteria of masculinity and patriarchy flow into the decisions made by Supreme Court judges in cases such as the Mathura rape case; the moral values held by these men regarding pre-marital sex and the chastity of an Indian women influenced their judgment. Thus, the “judgment” pronounced by a judge is no more a judgment in the logical sense of the word, than the norm that he applies (13) and in this case the norm being that of the moral values of a judge regarding the behavior of a rape victim.

To summarize, when it comes to law and morality there can really be three types of situations: Firstly, in the process of gap filling between the cases falling under penumbra of uncertainties and the simple cases, morality is the primary tool to bridge that gap. Secondly, in cases like the Mathura rape case the judges let moral values get better of their judgment and let their decision be colored with prejudices when they shouldn’t have. Lastly, there are instances where the intention of preserving the morals of a community tower over the need for a law which governs everyone uniformly.

All in all it can be deduced that morality plays an important role in influencing how a judge understands the law. The difference between law and morality lies in the fact that law can roughly be said to be a more formal version of the morals of a society whether it is good or bad. Morality, on the other hand has since always influenced the evolution of laws everywhere. This mutually beneficial relation between law and morality is useful for judges not only when law fails to provide a concrete answer but also when ‘immoral morality’ creeps its way in.

(1) Oliver W. Holmes, The Path of the Law, Pg 2, available at
(2) H.L.A. Hart, The Concept of Law, Pg 7
(3) H.L.A. Hart, The Concept of Law, Pg 7
(4) Ibid, Pg 12
(5) H.L.A. Hart, positivism and the Separation of Law and Morals, 71 HLR 4, 598,593-629, (1958).
(6) Oliver W. Holmes, The Path of the Law, Pg 3, available at
(7) Robert Cover, Violence and the Word, 95 Yale L.J 1601, 1,1-23, (1986)
(8) Lon L. Fuller, Positivism and Fidelity to Law- A Reply to Professor Hart, HLR Vol. 71, No. 4. (Feb., 1958), pp. 630-672, 635
(9) ibid
(10) (1978) 2 SCC 424
(11) Carol Smart, The Woman of Legal Discourse, Pg 187
(12) Ibid, Pg 189
(13) Hans Kelsen, Norm and Value, California Law Review, Vol. 54, No. 4, A Tribute to Albert A. Ehrenzweig. (Oct., 1966), 1628, pp.1624-1629.

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