PAPER ON

LON LUVOIS FULLER

SUBMITTED FOR THE PURPOSE OF INTERNAL ASSESSMENT

JURISPRUDENCE

FIRST SEMESTER

LL.B. (HONS.) IN INTELLECTUAL PROPERTY LAW

AT RGSOIPL – IIT KHARAGPUR

UNDER GUIDANCE OF: SUBMITTED BY:

Prof. SHREYA MATILAL CHINMOY MISHRA – 17IP63011

RAJNISH KUMAR – 17IP63022

RISHITA GHOSH – 17IP63037

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FULLER
Lon Luvois Fuller

“The only formula that might be called a definition of law offered in these writings is by now
thoroughly familiar: law is the enterprise of subjecting human conduct to the governance of
rules. Unlike most modern theories of law, this view treats law as anactivity and regards a legal
system as the product of a sustained purposive effort.”

Lon L. Fuller — The Morality of Law1

Introduction:-
‘Dharma’, ‘Hukum’, ‘Jus’, ‘Droit’ and ‘Richt’, these corresponding words convey the same term
‘Law’ for different societies throughout different ages. It’s true that a lot of great philosophers
tried to define the term ‘Law’ in their own ways during different periods of human civilization,
but still, we don’t have a widely accepted definition of law. Though we can understand the law
as a uniformity of behavior, a constancy of happenings or a course of events, rules of action,
whether in the phenomena of nature or in the ways of rational human beings. It can also be
interpreted as a body of rules of conduct, action or behavior of a person, made and enforced by
the state. There have been various kinds of legal theories proposed and discussed by different
legal philosophers and legal scholars through different periods of human civilization. One of the
prominent legal theories which have been debated and argued over throughout ages is ‘Natural
Law’. ‘Natural Law’ or ‘Higher Law’ or ‘Law of Nature’ is the oldest as well as the most
modern as it has been continually dominating the entire basis of politics, law, religion and social
philosophy. Blackstone once said, “This law of nature, being as ever with mankind and dictated
by God himself is, of course, superior to any other, it is binding over all the globe in all
countries; no human laws are of any validity if contrary to this and much of them as are valid to
derive all their forces and all the validity mediately and immediately from this original law”. The
attractions of natural law are self-evident. Ordinary law all fall short of the ideal, men have felt
the need of an appeal from positive law to some higher standard. Just such a standard is provided
by natural law with “lex iniusta non est lex”. It has served to criticize and restrict positive law.
There have been a lot of supporters of natural law from the period of ancient Greek till modern
society. Some of these prominent supporters of natural law are Solon(638 BC), Plato(427 BC),
Aristotle(384 BC), Cicero(106 BC), St. Augustine(345 AD), St. Aquinas(1225 AD),
Hobbes(1712), Immanuel Kant(1724), Kohler(1849), Geny(1861), Fuller(1902-1978),
Finnis(1940-) etc. Lon L. Fuller’s theory of law and morality is considered as an important event
in the history of natural law theory, which not only revived natural law theory during modern era
but also strengthened it with his theory of Law and Morality. Hitler and his Nazi regime (1933-
1945) forced most of the legal philosophers to review the legal positivism and also to affirm the
need for natural law in modern society.

1Lon L. Fuller, The Morality of Law, (Fourth Indian Reprint 2006:Yale University Press, UK, 1969): p. 106.

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Lon L. Fuller (1902-1978) born in Texas, USA was a famous legal philosopher of the twentieth
century, who criticized legal positivism and defended a secular and procedural form of natural
law theory. Fuller was a professor of Law at Harvard University for many years and is noted in
American law for his contributions to both jurisprudence and the law of contracts. His debate in
1958 with the prominent British legal philosopher H. L. A. Hart in the Harvard Law Review
(Vol. 71) was important in framing the modern conflict between legal positivism and natural law
theory. In his popular 1964 book, The Morality of Law, Fuller suggests that all systems of law
contain an "internal morality" that imposes on individuals a presumptive obligation of obedience.
His notable works include:

1. Law in Quest of Itself, 1940

2. Basic Contract Law, 1947
3. Problems of Jurisprudence, 1949
4. The Morality of Law, 1964
5. Legal Fictions, 1967
6. Anatomy of Law, 1968

In his ‘Law in Quest of Itself’, Fuller has discussed the competing claims of legal positivism and
natural law. According to him legal positivism and natural law are two different directions of
legal thought. Legal positivism is defined as that direction of legal thought which insists on
drawing a sharp distinction between the law, ‘that is’ and the law that ‘ought to be’. Fuller
reminds us many systems of natural law but one thing that unites them is a certain coalescence of
the ‘is’ and ‘ought’ and a denial of the absolute hard and fast line between law and ethics. Fuller
observes that nature does not present us with ‘is’ and ‘ought’ in distinct pattern – Fuller says that
the Natural Law philosopher should direct his energies towards more profitable employment than
attempting to separate the inseparable. Fuller also says it’s a futile exercise to separate the ‘is’
from ‘ought’ and law from morality. He criticizes those who try to separate ethics and morality
from law. He supports a system which supplements legal positivism with natural law concepts.
Facts and values are an integral part of legal reality in so far as purposive human activity is
concerned. In his ‘The Morality of Law’, Fuller expounds the Nature of Morality and the Theory
of Law and the relationship between law and morality. According to Fuller law or legal system is
not to be studied as a data or a natural fact. Fuller tried to explain ‘Eight Ways to Fail to Make
Law’2 using the story of Rex3. Fuller Says,
‘Certainly there can be no rational ground for asserting that a man can have a moral obligation
to obey a legal rule that doesn’t exist, or is kept secret from him, or that came into existence only
after he had acted, or was unintelligible, or was contradicted by another rule of the same system,
or commanded the impossible, or changed every minute’.4

2Lon L. Fuller, The Morality of Law, (Fourth Indian Reprint 2006:Yale University Press, UK, 1969): p. 33.

3Lon L. Fuller, The Morality of Law, (Fourth Indian Reprint 2006:Yale University Press, UK, 1969): p. 33-41.

4Lon L. Fuller, The Morality of Law, (Fourth Indian Reprint 2006:Yale University Press, UK, 1969): p. 39.

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Fuller illustrates these eight principles are not conceived as maxims of substantive natural law.
They are instead seen as a kind of procedural natural law. These eight conditions constitute what
Fuller calls the ‘inner morality of law’ and a procedural version of the new natural law in the
twenty-first century as human rights and fundamental freedoms. Legal positivism also attempts
to remain morally neutral. This is criticized by Fuller because it fails to recognize the role legal
rules play in making possible an effective realization of morality in the actual behavior of human
beings. He states,
"Moral principles cannot function in a social vacuum or in a war of all against all. To live the
good life requires something more than good intentions, even if they are generally shared; it
requires the support of firm base lines for human interaction, something that, in modern society,
at least, only a sound legal system can supply."5
Fuller in discussing the nature of law introduces two important concepts. These are "the morality
of aspiration" and "the morality of duty. According to Fuller, "While the morality of aspiration
starts at the top of human achievement, the morality of duty starts at the bottom. It lays down the
basic rules without which an ordered society is impossible, or without which an ordered society
directed toward certain specific goals must fail of its mark. The morality of duty finds its closest
cousin in the law. The morality of duty is the morality of the Old Testament and the Ten
Commandments. It speaks in terms of 'thou shalt not,' and, less frequently, of 'thou shalt.' It does
not condemn men for failing to embrace opportunities for the fullest realization of their powers.
Instead, it condemns them for failing to respect the basic requirements of social living. The
moral injunction, 'thou shalt not kill,' implies no picture of the perfect life. It rests on the prosaic
truth that if men kill one another off no conceivable morality of aspiration can be realized.”6
Fuller also compares the morality of duty to that of the morality of aspiration and suggests an
ascending scale. Fuller terms essentials of social life as morality of duty where as terming
achieving of human excellence as morality of aspiration. As he says,
"The bottom of the scale starts with the conditions obviously essential to social life and ends at
the top with the loftiest strivings toward human excellence. The lower rungs on the scale
represent the morality of duty; the higher rungs represent the morality of aspiration. Separating
the two is a fluctuating line of division, yet vitally important. If the morality of duty reaches
upward beyond its proper sphere the iron hand of imposed obligation may stifle experiment,
inspiration, and spontaneity. If the morality of aspiration invades the province of duty, people
may begin to weigh and qualify their obligations by standards of their own, and we may end with
the poet tossing his wife into the river in the belief -- perhaps quite justified -- that he will be able
to write better poetry in her absence."7

5Lon L. Fuller, The Morality of Law, (Fourth Indian Reprint 2006:Yale University Press, UK, 1969): p. 205.

6Lon L. Fuller, The Morality of Law, (Fourth Indian Reprint 2006:Yale University Press, UK, 1969): p. 5-6.

7Lon L. Fuller, The Morality of Law, (Fourth Indian Reprint 2006:Yale University Press, UK, 1969): p. 27-28.

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Fuller also believes that the morality of aspiration offers a measure of resolution to the problem
of who should be included in the community. Fuller refers to the Bible where the morality of
duty includes the command, "Thou shall love your neighbor as yourself." A lawyer asked Jesus,
"Who is my neighbor?" And Jesus told the story of the Good Samaritan. Fuller concludes that,
"We should aspire to enlarge the community at every opportunity and to include within it
ultimately, if we can all those of good will."8

Morality of law
Lon Fuller is known widely for his most renowned work on natural law theories. One of the
notable features of the same is his renowned book called “The Morality of Law”[9]. This work of
Fuller notably revolves around the concept of granting morality, the status of an integral movable
instrument in determining the making and building of a law. His work focuses on the
contradictory view that a good law expects complete obedience from the subjects which can be
debated stating that laws which are prone to changes and adjustments are good laws and these
laws inspire obedience from the subjects rather than demanding the same.
These principles and values are brought out in the book in a simplified and systematic approach
with the help of the story of King Rex. The name Rex itself resonates the vibrancy of regality
and justice. Rex in Latin means The King, and this essentially revolves around the various law-
making strategies adopted by Rex to make his kingdom a just and legally exemplified kingdom.
The various approaches of Rex are discussed in detail towards the lawmaking processes and how
each of these methods had disastrous effects on his subjects.
The outline of the book starts with the accession of King Rex as the King in his kingdom and
thereby realizing the grave mismatch and complete disregard of orderliness in the legal system.
His first act as the king was to abolish all the previous laws laid down by earlier rulers and
thereby taking it upon him the duty to frame a new legal system to address all the issues of the
society. This act deliberately led people into a state of frenzy and rather turned the kingdom into
a lawless society. Then he drafted the laws with his own wit and wisdom and withhold the public
announcements of these laws to avoid corruption of the same. This gave the plea of unawareness
of law to the guilty. So, to counter this situation, Rex then promulgated the legal rules and
regulations among the people in a complex language which were beyond the comprehension of a
common man. So, to appease the pleadings of his subjects, Rex now appointed a group of
learned lawyers and politicians to simplify the language of the law. While doing so, the
lawmakers realized that most of the latest provisions contradicted the earlier provisions and the

8Lon L. Fuller, The Morality of Law, (Fourth Indian Reprint 2006:Yale University Press, UK, 1969): p. 182.

9Lon L. Fuller, The Morality of Law, (Fourth Indian Reprint 2006:Yale University Press, UK, 1969).

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language was so complex that many combinations of a possible interpretation of the same lead to
utter chaos. Completely disheartened and disgusted by this turn of events, Rex issued some code
of contradictions holding the citizens liable for simplest events like coughing, sneezing or
fainting in front of the king. This turned out to be a spark for many secret and open revolts
against the King. Rex realizing his mistake gave the code of command and laws to a group of
governors and asked them to govern the citizens according to the law. This lead to high amount
of injustice as the governors started bending the rules to their advantages. Realizing his mistakes,
Rex again took the role of a judge and started personally addressing each case according to the
law which often contradicted with previous judgments and also with the laid down codified law.
These spurred high amounts of discontent among the public and lead to spur of secret revolts.
Due to so many chaos and inconsistency in the legal and administration of the kingdom, the
subjects were agitated against a wise King like Rex. Due to the sudden death of Rex under some
unnatural circumstances, Rex II, his son came into succession and just like his father changed the
control of power in the hands of the psychiatrists and public relations as he believed that
appeasement of subjects plays a major role than enforcement of law and order. These issues are
addressed by Fuller and he lists 8 principles to form an elaborative and justified law or a legal
system. These eight principles are (1) Generality of Law, (2) Promulgation, (3) Retroactive
Laws, (4) The Clarity of Laws, (5) Contradiction of Laws, (6) Laws Requiring the Impossible,
(7) Constancy of law through time and (8) Congruence between official action and declared rule.
Apart from these 8 principles, Fuller also talks about some essential commonsense or morality to
be imbibed during the law-making process like the Morality of Duty and Morality of Aspiration.
The Morality of Duty is considered to be an inherent quality of a human being without which the
daily activities of a human life are not met. The Morality of Aspiration is considered as a level of
excellence which every human being desires to achieve someday with their work and intellect.
Let us begin deciphering each of the 8 principles one by one.

1. GENERALITY OF LAW
According to Fuller, laws must be general and equal for all the citizens of a place. In his words,
“The first desideratum of a system for subjecting human conduct to the governance of rules is an
obvious one: there must be rules. This may be stated as the requirement of generality”[10]. This
principle specifically refers to the equivocal development of laws of a state without any
restriction to caste, creed or any other social binding. This principle doesn’t necessarily talk
about morality in person but more so about the direction of law towards a specific individual is
incorrect than when it directs an entire community.

10
Lon L. Fuller, The Morality of Law, (Fourth Indian Reprint 2006:Yale University Press, UK, 1969): p. 46.

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The old common law theory of Great Britain stating that “A King can do no Wrong” violates the
principle of generality as it focuses only on an individual and exempts that individual from all
the rules and regulations of the state. Though this can be debated that those making the laws
generally try to exempt themselves from any burden of the law, this should be highly criticized
as laws must be general in some sense to all the citizens that include even the law makers. But
this problem of generalization has been criticized time and again and according to Fuller, “The
problem of generality receives a very inadequate treatment in the literature of Jurisprudence.
Austin correctly perceived that a legal system is something more than a series of patternless
exercises of political power”[11].
The requirement of generality requires rules to control the human conduct against the rules. This
means that laws laid down by the state is often interpreted by an individual in their own sense
and thus checks must be imposed to curb irrational interpretation. In the above example, when
we say that “A King can do no Wrong”, this generalizes the conducts of kings either exempting
them from all the burden of the society and thus lead a free lifestyle or it specifically regulates
the action of a monarch suggesting that any action that is taken by a King must not be wrong.
Thus, generalizing the human behavior of the monarchs.

2. PROMULGATION
This principle hinges towards the acknowledgment of the fact that laws must be conveyed to all
without any bar of literacy. According to Thurman Arnold who considers a mere realist person,
put forward some requirement of promulgation as,” After all, we have thousands of laws, only
the smallest fraction of which are known, directly or indirectly, to the ordinary citizen. Why all
this fuss about publishing them? Without reading the criminal code, the citizen knows he
shouldn’t murder and steal”[12].
This means that the general principles of law which if tandem with the conscience of a human
being are already known to a person and the intricacies are subject to the interest of the experts.
But in case, even the basic laws of are not known for example which profession or trade is
guaranteed by the law, it becomes confusing for the citizens to pursue a trade of their choice.
Moreover Fuller suggests that “In many activities, men observe the law, not because they know it
directly, but because they follow the pattern set by others whom they know to be better informed
than themselves”[13].
Thus, promulgation of law is necessary to maintain order and peace in a society and also reduces
the liability of the state for any simple damage where a plaintiff can plea unawareness of the law.

11
Lon L. Fuller, The Morality of Law, (Fourth Indian Reprint 2006:Yale University Press, UK, 1969): p. 48.
12
Lon L. Fuller, The Morality of Law, (Fourth Indian Reprint 2006:Yale University Press, UK, 1969): p. 50.
13
Lon L. Fuller, The Morality of Law, (Fourth Indian Reprint 2006:Yale University Press, UK, 1969): p.51.

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3. RETROACTIVE LAWS
These laws are regarded as the opportunistic laws. There are two aspects of retroactive laws, one
which regards it as a curative measure for unjust state policies, on the other hand, these laws are
also referred as simple laws which change as time passes in a small society to fit their changing
needs and thus maintain order.
These laws according to Fuller are developed through time to fill the deficit in the law- making a
process or to justify some unethical actions of the state by giving it a status of a law and thus
making it binding on all citizens to follow it. In Fuller’s words,” Taken by itself, and in
abstraction from its possible function in a system of laws that are largely prospective, a
retroactive law is truly a monstrosity”[14].
The second aspect of retroactive laws makes it convenient for judges to sometimes differentiate
and give a judgment for a complex case. Fuller rightly quotes, “The second aspect of
retrospective lawmaking relates not so much to any positive contribution it may on occasion
make to the internal morality of the law, but rather to the circumstance that it unavoidably
attaches in some measure to the office of the judge”[15].For example in a strong case where the
arguments from both the parties render the judge incapable of a solid decision, then the judge can
turn to retrospective legislation.
But there must be a clear demarcation of these laws from civil and criminal disputes. If the law
changes for each culprit under criminal law, there will be a huge set of circumstances also related
to the status of the guilty which is an unjust way to make a law. This retrospective principle
gives a huge scope for further development of law.
4. CLARITY OF LAWS
The laws which are laid down must be clear in interpretation and understanding by the citizens
and if that is not the case, then at least the experts must be able to comprehend the laws and
make it understandable to the citizens. These days we all live under a rigorous chain of
commands and these commanders must be instilled with a higher percentage of internal morality
while framing the laws as that would lead to a just and happy society.
Legislative clarity depends on a lot of standards such as “good faith” and “due care”. In Fuller’s
words, “Sometimes the best way to achieve clarity is to take advantage of, and to incorporate
into the law, common sense standards of judgment that have grown up in the ordinary life lived
outside legislative halls”[16]Thus clear laying down of laws and its unanimous interpretation is
very important for a correct law.

14
Lon L. Fuller, The Morality of Law, (Fourth Indian Reprint 2006:Yale University Press, UK, 1969): p. 52.
15
Lon L. Fuller, The Morality of Law, (Fourth Indian Reprint 2006:Yale University Press, UK, 1969): p. 54.
16
Lon L. Fuller, The Morality of Law, (Fourth Indian Reprint 2006:Yale University Press, UK, 1969): p. 60.

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5. CONTRADICTIONS IN THE LAWS
According to Fuller, a contradiction in law is “A contradiction is something that violates the law
of identity by which A cannot be not-A”[17].Law must be clear in its interpretation and there
should not be any collision of provisions in the law. For example, if buying of certain objects
like a gun or something is completely legal but its usage under any circumstances is illegal then
it directly contravenes the legal rights of the buyer to enjoy the property under his possession.
But contradiction in itself is a huge term and it has vagaries meaning of its own. So to reduce the
confusion in thisarena, we generally use the term ‘incompatible’. This means that some laws
although valid, are clearly not fit to be applicable with the other laws. These mismatches in laws
create confusion among citizens for its application in one context and its removal in the other. It
also becomes a chaotic task for the judges to give an accurate judgment if there are conflicting
statutes in the law.
Thus Fuller rightly pointed that, “The context that must be taken into account in determining the
issue of incompatibility is, of course, not merely or evenly technological, for it includes the whole
institutional setting of the problem- legal, moral, political, economic and sociological”[18].
6. LAWS REQUIRING THE IMPOSSIBLE
The laws which are laid down must not demand any impossible act or task to be performed by
the citizens. But the degree of impossibility is also a relative term. For example, a teacher giving
3 assignments a day to the students is an impossible task for the students but according to the
teacher, this task is perfectly plausible to complete. Thus, Fuller gives a valid justification in this
regard as, “The principle that the law should not demand impossible of the subject may be
pressed toward a quixotic extreme in which it ends by demanding the impossible of the
legislator”[19].
The legal ability of an impossible task is generally justified on two grounds as, (1) an intent to do
a harmful act, and (2) some fault or neglect. These two factors again depend on the
comprehension given in the perspective of a reasonable man. D The intentions are external
manifestations provided by humans to some extent and if somebody has an intention to protect
their interests by quoting an impossible task, then it is generally visible. For example, Hitler’s
hatred towards the Jews was clearly evident from his extreme statements and behavior which
was interpreted by others as an impossible act.
None the less, there can be a fault on a person’s part to ask someone to perform a task which is
impossible. For example, a person promises to sell his land to another only if the other person
could find water in that part of the land. But somehow that didn’t happen and this was a sheer
mis-belief on the seller’s part thinking that underground water was available.

18
Lon L. Fuller, The Morality of Law, (Fourth Indian Reprint 2006:Yale University Press, UK, 1969): p.65.
19
Lon L. Fuller, The Morality of Law, (Fourth Indian Reprint 2006:Yale University Press, UK, 1969): p. 68.

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Thus, Fuller believed that the fact impossible is derived from the presumptions of nature and
man and that law must be aware and reasonable enough to not let these presumptions cloud the
judgment of law makers.

7. CONSTANCY OF LAW THROUGH TIME

The frequent gaps created by retroactive laws must be filled by ultimate laws which must sustain
the needs of the society for a long time. A good legal system must be subject to change for its
growth but too frequent changes inherently damage the belief in law.
As Fuller rightly suggests, “The affinity between the problems raised by too frequent or sudden
changes in the law and those raised by the retrospective Legislations receive recognition in the
decision of Supreme Court”[20]. The clear distinction between what needs to be changed for a
long time and short time is required. For example, the frequent changes in the laws during the
Nazi regime ultimately led to its downfall because it was unable to give clear demarcation of
prolonged sustenance of these laws which were primarily based on hatred against the Jews.
Thus, prolongation and valid application of laws for a reasonable period of time before it has
been subject to changes are necessary for a good legal system.

8. CONGRUENCE BETWEEN OFFICIAL ACTION AND DECLARED RULE

This is the most complex part of the lawmaking process. This principle talks about the
correlation between the written laws in statutes and books and its actual application in daily life.
This is the most difficult task as the written codes are subject to the interpretation of the person
executing it. Moreover, the authorities as well the educated classes often have different views
about the interpretation of the laws which suit their convenience and thus the Judiciary took it
upon itself to interpret all the laws and everyone must abide by that interpretation.
The execution of laws is also done by men who can be swayed very easily from performing their
duties which may not be codified in the laws. For example, laws related to banning of drugs and
narcotics has been implemented throughout the globe and almost all the nations have adopted
laws to curb it, yet smuggling remains a problem at large. Thus for efficient working of the
system, the black and white written code must be followed in daily life which is finally a
congruence of laws.

20
Lon L. Fuller, The Morality of Law, (Fourth Indian Reprint 2006:Yale University Press, UK, 1969): p. 82.

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Applications
Through the knowledge of the theoretical fabric of the rule of law, we can use the theoretical
framework of law to put light on why some actions, behaviors were coercive in nature during
repressive regimes and in conflict ridden societies, and why such behaviors are universally
castigated. Nonetheless, these behaviors are morally challenging and questionable. Let consider
Argentina (1976-83), Guantanamo Bay (2001-2011) and the problem of people of Baluchistan
till date. These all have many things in common, be it kidnapping, unlawful detention, inhumane
treatment, torturing, rape, murder and bombing down its own people in Baluchistan by Pakistani
armed forces by conventional techniques and with modern fighter jets, costing millions of lives
in all these situations. In all the mentioned situations, government sponsored unlawful activities,
be it on their territories or falling under other jurisdiction in case of Guantanamo Bay, to be
carried out violating the congruence of guidelines of the law. The governments in all mentioned
sovereign are committed to the principles, ideals, and values of democratic setup on paper. And
it has nowhere sanctioned the murder, kidnapping, torture or any inhuman behavior under
democratic setup. The length and breadth to which govt. officials denied liabilities of the
unlawful activities carried out under the supervision of sovereign power forced the law
academicians to provide deeper insights into law and morality togetherness, in modern era even
though the modern democratic setup is principled on the combined value of law and morality.
These all inhuman activities led widespread condemnation and rebel situation for the state. More
ever the Fullerian concept of law and morality, long back, also indicated the impact of actions
ordered by sovereign power on the people relationship with government officials that are
sanctioned by institutions and otherwise. Therefore, we come to the conclusion that society
cannot be kept together with enforced laws (i.e. with physical force) without morality. The
togetherness and peace within the society are held by imperceptible hands of common thinking
and the common conscience is a component of that bondage. Thus the Fullerian concept of
morality in law not only provided understanding that morality is an integral part of the law and
cannot be separated but also important to modern democratic setup or any dictatorship to
continue to survive in long run.

Indian position
The moral values which India is cherishing from ancient times have been assimilated in Indian
Constitution as “Fundamental Rights” and in various principle guidelines of state policies. These
consist of the right to religion, freedom, equity before the law and many more. Truly speaking
these moral values are gift of society to the law not only in India Constitution but to all
democratic worlds. These all values are stated in our epics like Ramayana and Vedas and
formed the core. And it is rightly said by Krishna Iyer J that “we cannot regain our past glory
unless we realize the importance of morality in our present legal system” 21.
Just like morality encourages and strengthens the soul of a human in very similar fashion
morality in law gives higher forcibility to law and on its own commands obedience from the
people. The ancient India very well believed in the concept of “Sadachar” which means good
conduct towards others and self. Actually, it signifies the importance of good behavior,

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righteousness, and honesty in virtuous living. Furthermore, the actions of individual or customs
practice must be immoral or hostile to the public code of conduct or against the principle of good
conscience, justice, equality, and freedom. On infinite occasions, Indian courts have acted to
maintain the concept of “Sadachar” in society from time to time through their landmark
judgments. For example customs regarding divorce, polygamy, polyandry, marrying sister,
daughters [22] and many more are held to be immoral. Khap panchayats decisions on the code of
conducts of girls have been held against the public policy under the court of law.
The modern laws are only confined to rights and duties, and unfortunately silent about moral
obligations and indecency. A society, without having high standards of decency and morality, is
bound to decay at a faster rate than realized by its members. Hence, makers of Indian
Constitution after the realization of these very facts included the ground of decency and morality
in article 19 subclause-2 of our Constitution to limit and justify the freedom of religion, speech,
and expression to avoid convenient abuse for deliberately decreasing or lowering of existing
public morality. The Supreme Court of India in “Ranjit D. Udeshi v. the State of
Maharashtra”[23] by using the “Hicklin Test”[24] upheld the constitutionality of section 292 of
IPC. This significantly indicates that the framers of Indian constitution had not overlooked the
moral element of the law. This is the sole reason why courts are expected to preserve the moral
or ethical values of law through judicial intervention whenever necessary to bring down immoral
laws. Thus Indian judiciary acts as an impressive check on legislature and executive when they
both attempt to infringe on public rights by their regressive laws.

21. N.V.Paranjape, Studies in Jurisprudence & Legal Theory 360-61 (1997).

22. Balusami v. Balakrishna, AIR 1957 Mad. 97.

23. AIR 1965 SC 881. S. 292 of IPC makes punishable to sell, distribute obscene
literature etc.
24. Queen. v. Hicklin (1868) 3 QB 360 at 371.

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