On the question of constitutional morality, how are law and morality related?

It is contained in conventions that have evolved over time and made the Constitution workable and a living document – one that is more than the sum of its written words, or, in the case of an unwritten Constitution, more than a mere mechanical aggregation of acts and charters.

Why law leads morality or morality leads law is a tricky question

There are two aspects of constitutional morality that this article explains. The first concerns the relationship between law and morality. The second relates to the advancement and cultivation of constitutional morality through judicial interpretation and resolution of complex cases involving questions of morality.

Constitutional morality is, thus, cultivated and nurtured, as B R Ambedkar once pointed out. As a result of this, there develops a certain attachment to the Constitution that can manifest itself in the form of what is known as Constitutional patriotism.

There is also an important and distinct legal component to Constitutional morality, especially in countries that follow British common law, such as former colonies like India and the United States. Such countries that follow the common law (a system founded on judicial precedents) experience the development of law in a gradual and evolutionary manner through stare decisis, or legal precedent, that results in an incremental and steady build-up of case law.

The incremental advancement of case law is often characterised by landmark judgements in which the finest legal minds apply their legal reasoning to contend with some of the more difficult and vexed legal issues. These are the issues for which there may not be an immediate and ready solution and which tend to divide societies. 

Quite often, these vexed legal issues are entwined with thorny questions of morality. Whether the law leads morality or morality leads the law is a tricky question to deal with and may not be the best way to understand the relationship between law and morality. They are so entwined that determining an order of precedence takes us nowhere.

Various philosophies of law have explored this complex question, with each offering a distinct lens. 

Philosophies of law and the question of morality

Natural law

The philosophy of natural law makes the most intense connection between morality and law, appealing to an intuitive sense of right and wrong. This tradition of natural law is an ancient one, encompassing the Stoics, the 13th century theologian Thomas Aquinas, and the more contemporary John Finnis (born in 1940).

The close connection between law and morality is further to be found in the work of American jurist Lon L Fuller (1902-78), where he argues that there exists an ‘inner morality’ in law. Fuller’s position has been identified as a kind of secular natural law, which has often been associated with Christian church fathers like St. Augustine and Thomas Aquinas. 

There was a decline of natural law thinking, especially with the rise of legal positivism in the 19th century, only for natural law theory to be revived in the 20th century, especially with the adoption of the Universal Declaration of Human Rights (UDHR) in 1948.

Legal positivism 

On the question of law and morality, which it is suggested lies at the core of constitutional morality, the traditions of natural law and legal positivism diverge. Legal positivists do not place an emphasis on the moral element within the law, choosing to focus instead on the social fact of the law being a command or ‘imperation’ of the sovereign. 

In other words, the school of legal positivism is not willing to look so much at the moral content of the law, but simply if the law as a social fact emanates from the command of the sovereign. The school of legal positivism has its origins in the philosophy of Jeremy Bentham (1748-1832), which was further extended by another English philosopher, John Austin (1790-1859). 

In the 20th century, there have been many distinguished legal positivists, many of them professors at the University of Oxford, such as H.L.A. Hart (1907-1992) and Joseph Raz (1939-2022), who have continued the tradition. The legal positivists can be divided into soft and hard groups, where the soft ones are prepared to incorporate some element of moral considerations in the law, while the hard ones tend to exclude such moral considerations.

To briefly recapitulate, on the question of constitutional morality and how law and morality are related, the tradition of natural law stands in contrast to legal positivism.

How legal interpretations answer difficult questions 

This is where the influential legal thinking of American judicial expert and public philosopher Ronald Dworkin (1931-2013) becomes important. Dworkin succeeded legal positivist H.L.A. Hart as Professor of Jurisprudence at Oxford, and argued that the law is a continuous process of interpretation that has a distinct moral and evaluative element in it. 

Dworkin likened the process of judicial interpretation to literary criticism, where the judge, in the act of interpretation, adds chapters to a seamless web of law’s extension. 

A position like Dworkin’s becomes extremely significant in the resolution of difficult and hard questions of law such as euthanasia, abortion, the consumption of pornography, and torture where there are no immediately and readily available legal remedies. 

Dworkin suggests that even a difficult legal problem can be resolved within the resources that the law and its principles make available and this prevents the possibility of any arbitrariness and gaps in the law.

Difficult cases that advance constitutional morality

It is in the resolution of these difficult and hard legal questions – that have wider ramifications on society – that the tradition of constitutional morality becomes crucial. The finest legal minds, as mentioned earlier, apply their minds to resolve the complexity of the issue at hand. 

The complexity of the legal issues arises from an entwinement of law and morality, and can be found especially in issues concerning abortion, euthanasia and the permissibility of torture. 

In the United States, the 1973 Roe v. Wade ruling, which recognised a woman’s right to abortion, was overturned by the Supreme Court in 2022. This is an issue that has caused divisions over the moral and legal questions: a) when a foetus can be considered to have a life of its own, b) a woman’s autonomy over her body to decide to abort the foetus in case of an unwanted pregnancy.

In India, a comparable moment occurred in 1973 with the Kesavananda Bharati judgement. Although it did not explicitly invoke constitutional morality, it did lay down the basic structure doctrine of the Constitution that parliament cannot alter. 

The 2017 Puttuswamy judgement, which affirms the right to privacy as a fundamental right, is also important as constitutional morality comes into play in terms of the individual’s privacy and dignity being off-limits to any form of state action. 

Overall, it may be noted that the direction that constitutional morality has taken is in terms of protecting the dignity of the individual from being overturned by the demands of a moral majority in society.

Post read questions

What is meant by constitutional morality? How does one uphold constitutional morality?

According to B R Ambedkar, why must constitutional morality be cultivated and nurtured? How does constitutional morality relate to the idea of constitutional patriotism?

How does the principle of stare decisis, or legal precedent, contribute to the evolution of constitutional morality in common law systems?

How does constitutional morality operate in resolving morally divisive legal issues such as abortion, euthanasia, or privacy?

How does the evolution of constitutional morality reflect the changing relationship between law, morality, and society?

(Amir Ali is an Assistant Professor at the Centre for Political Studies, Jawaharlal Nehru University, New Delhi.)

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