FATE OF LAW WHEN UNCLOTHED OF MORALITY

Abstract

This article discusses the richly multifaceted interconnection between morality and law, a problem that has inflamed legal philosophy for centuries. Legal positivists maintain that law is conceptually separable from morality, whereas natural law theorists claim that law's validity rests upon its moral content. Taking the debate a step further, the article examines the inevitability of morality in law by examining the function of moral reasoning within legislation, judicial interpretation, and enforcement using the examples of past and present such as apartheid legislation in South Africa, the Nuremberg Laws of Nazi Germany, and colonial-era legislative provisions criminalizing homosexuality. The discussion shows that immoral laws can be technically existent, but they ultimately perish or wither away under moral abuse. It also addresses the ‘Hart and Fuller debate’ by developing through Hart’s positivist take and Fuller’s natural law stance. The objective of this paper is to demonstrate that a complete dichotomy between law and morality is unsound. Thus, concluding that, analytically, law and morality can be separated, but practically they are inseparable.

References

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