JURISPRUDENCE 2022 -2023

SEMINAR QUESTION 8

“A carpenter who has learnt his trade might as well devote his trade to the building of a

hangout for thieves as to building an orphans’ asylum.” Anon

With reference to the above quote discuss the place of ethics in the application of law.

Introduction

Ron Fuller in his analogy of the carpenter states that: If we had no carpenter at all it would be
plain that our first need would be, not to draft blueprints for hospitals and asylums or to argue
about the principles of good design, but to recruit and train carpenters. Thus, the world needs
law more than it needs good law.1

Ron Fuller view is that the internal morality of law is not something imposed on the power of
law but an intrinsic condition of that power itself. In this regard, it is clear that law is a
precondition of good law.

Further, in his discussion of internal morality of law argues that in order to achieve the best of
legal objectives there must be internally good laws. The internal morality of law requires an
evaluation as to the nature of man. That is, a free and responsible agent.

Moreover, in any important activity, there are certain considerations that constrain the efficient
performance of that activity. These constraints in legal sense are “natural laws” that hamper
efficient carpentry.2

The place of ethics in the application of law

Ethics

Ethics is defined as the study and philosophy of human conduct. It evaluates human behavior,
action, choices or character based on moral values. Ethics delves into human morality and
appraises human actions.

1
Fuller, Lon L. 1969. The Morality of the Law, revised edn. New Haven: Yale University Press. Pg 99-101
2
ibid
Ethics function in the legal system as a code of conduct for those “rational beings” who are to
abide by it and implement it in their daily lives.

Law and ethics

Law is the primary factor in the influencing ethical or moral standards especially in the use of
coercive force.

Law is the authoritative source of law while ethics is the persuasive source of law. Thus, the
relationship is necessary since the interpretation of every law in a legal system can be
challenged for being morally indefensible. Hence, law is a normative order founded in a practice
of legality.

John Austin said that a legal right necessarily involves three parties: “a party bearing the right; a
party burdened with the relative duty; and a sovereign government setting the law through
which the right and the duty are respectively conferred and imposed.

Thus, a right can be defined as a component of human relationship that is governed by a

Jeremy Bentham posited that the only rules formed rights were legal rules. Hence, there are no
rights without law or contrary to the law.3

For instance, legal ethics entails principles of conduct that members of the profession are
expected to observe in the practice of law.4 For instance, lawyers are required to submit to
professional conduct so that the unethical lawyers do not tarnish the legal profession.

Ethics versus morality

Ethics lays down the principles of human behavior. They are made up of moral principles and
values related to an individual’ set of standards. Morality on the contrary, deals with the daily
actions of an individual based on these principles.

The fundamental standard of morality is that all human beings ought to respect due to their
inherent dignity as ends in themselves and as means to extract some gain. 5

3
Richard S. Kay, Normative Systems and Human Rights, 71 Emory L. J. 1583 (2022) pg 1589
4
LERMAN & SCHRAG, supra note 1, at 4; CHRISTINE PARKER & ADRIAN EVANS, INSIDE LAWYERS’ ETHICS 3 (2007).
Thus, even if one can recognize the distinction between law and morality, it is just as true that
law implicitly derives its authority from moral codes of conduct, and morality stems from
generally accepted principles relating to “equality of respect, solidarity, and the common good. 6

People have the legal freedom to express themselves; however, their expressions may still be
ethically offensive and immoral. On the contrary, some people may express opinions based on
their ethical or moral positions; however, the way they express those opinions may actually be
illegal.

Political morality

It is a set of norms governing how governments should treat or not treat their citizens. The
central norm of human rights is political morality.

The political morality of human rights addresses government action in recognizing and
respecting basic human rights.

Moral view sees human rights as being aspects of a universal morality influenced by human
conduct. They are characteristics that are possessed by every human being. 7

Morality is political in nature when it applies to government bodies. Hence, the morality
extends from the individual to adopt a governmental mandate that is beneficial to the society. 8

Criminal justice system

One of the deeply held moral principle is that repeat offenders should be punished severely
compared to first time offenders. Hence, judges have moral reasons to consider prior
convictions as a presumptive mitigating factor.

Universal morality

It is the inherent dignity from which the equal and inalienable rights of all human beings
possess as a unifying condition.
5
David Hollenbach, A Relational Understanding of Human Rights: Human Dignity in Social Solidarity, 71 Emory L. J.
1487 (2022).Pg 1499
6
STEVEN DARWALL, MORALITY, AUTHORITY AND LAW: ESSAYS IN SECOND-PERSONAL ETHICS I 172 (2013); Moka-
Mubelo, supra note 31, at 67.
7
ibid
8
Martha A. Fineman, Rights, Resilience, and Responsibility, 71 Emory L. J. 1435 (2022)
However, the fundamental rights are not absolute, they have limitations. The moral freedom is
qualified. It may protect a citizen imposition of punitive restrictions by the government some
restrictive rules are allowed to protect the welfare of the majority. For instances, the right to
life, abortion and same sex marriages are limited by the government though they are individual
rights.9

Ethics versus Legal positivism

Legal positivism theory recognizes that legal interpretation does not necessarily conform to
good moral reasoning and can deliver conclusions about what the law is that represents it as
significantly morally defective.10

It regards law and morality primarily as systems of norms and as bodies of rules and principles
that can be formulated as propositions.

H.L, Hart, there is no useful connection between law and morality; law and morality can be
separated and can be distinct.

Hart Fuller Debate,

The debate examined the relationship of law and morality

Hart held that morality and law are separate and Fuller asserted that morality is the source of
the law’s binding power. Laws bind every citizen to abide by them; however, moral standards
depend upon an individual’s upbringing, values, religious background, and culture.

9
Martha A. Fineman, Rights, Resilience, and Responsibility, 71 Emory L. J. 1435 (2022)
10
David O. Brink, Legal Interpretation and Morality, in, OBJECTIVITY IN LAW AND MORALS 54 (Brian Leiter ed.,
2001)