Law and Morality: Reconciliating the Antagonism
Volume III, Issue VI, 2020
Oodles of ink has been squirted to resolve the apparent antagonism between law and morality, but the cleavage between the two does not seem to bridge. The two prominent schools of jurisprudence -the positivist school and the naturalist school have their heads locked till date despite the concessions they have made in the modern times. Starting from Bentham and Austin on one hand and Thomas Aquinas and Rousseau on the other the legacy of respective schools descended upon Hart and Kelson on one end and Finnis and Fuller on the other. The fundamental question or problem however remains as it is-does law have essential connection with morality?
This paper would be another attempt towards the conciliation of the much-heated extremes that perplexes every student of jurisprudence even today. With the advent of constitutional democracies how far these theories have managed to hold their respective bastions intact. Has the concept of constitutional morality to any extent reduced the antagonism and theoretical battle between the two? Is there any scope to befriend the two-pronged streams of jurisprudential enquiry?
It is not our claim here that we are making any philosophical innovation rather we would merely focus our attention finding a gentle plane for jurisprudential expansion which we feel has been mired in the debate of law versus morality for long enough. Excess of anything is not good. Naturalists stance has exposed to us how creepy the godliness can get and similarly the positivists invocation of law as it is, has inspired and pampered nasty regimes.
It is high time that some moderation comes in jurisprudential approach and this paper is an effort in that direction.