Classical Indian jurisprudence does not separate law from moral duties, whereas Western legal theory has undergone a rigorous debate over the enforcement of morals.
1. The Concept of Dharma in Indian Jurisprudence
In ancient Indian legal thought, Dharma is the supreme guiding principle:
- Dharma represents moral duty, righteousness, social order, and cosmic justice. It is far broader than "religion."
- Unlike Western positivism, Dharma integrates law and morality. The king is not the creator of law but is himself bound by Dharma.
- The classic sources of Dharma are the *Shrutis* (Vedas), *Smritis* (Dharmashastras), and *Sadachara* (approved customs).
2. The Western Law-Morality Debate
The boundary between legal duty and moral obligations has been tested in several major debates:
A. The Hart-Devlin Debate
- H.L.A. Hart's View (Liberal): Hart argued that law should not enforce private morality. He supported the "Harm Principle" (J.S. Mill), stating that the state should only intervene to prevent harm to others. Private consensual acts should remain outside criminal law.
- Lord Devlin's View (Conservative): Devlin argued that society is held together by its shared moral fabric. A breach of shared morality threatens the survival of society. Therefore, the law has a right to enforce public morals to maintain social cohesion.
B. Lon Fuller's Inner Morality of Law
Fuller argued that a legal system must satisfy eight basic procedural requirements to have functional validity. He called this the "inner morality" of law:
- Generality (Rules must apply generally).
- Promulgation (Rules must be published).
- Non-retroactivity (No retrospective criminalization).
- Clarity (Rules must be understandable).
- Consistency (No contradictory rules).
- Possibility of Compliance (No demanding the impossible).
- Constancy (Rules must not change too rapidly).
- Congruence (Rules must be enforced as written).