By: Mawra Raja
On 25th August 2020 ‘Rights-duties paradigm: a panacea to our parent-child conundrum’ was published in Daily Times and evoked multi-fold responses. Two of them, in particular, enthralled me. The first was the relationship between law and morality. The second was our duty in morally challenging situations and how the rights-duties paradigm offered a solution in cases of a clash between duties. For example, where did the pendulum stop if the duty owed to parents came in direct conflict with the duty to be a just human being? The irony as many would agree is there is no clear-cut response but its pursuit is always wanting and informing. Since the matter has intricacies it requires detouring into certain pre-text concepts such as natural law v legal positivism debate before any exact elaboration is made.
To understand the relationship between law and morality, on the one hand, and duties and rights on the other we have to re-structure the natural law vs legal positivism debate into the morality-human nature-law triangle
Natural law has had a pre-eminent place in academic thought for a time long until its decline in the 17th century pursuant to scientific revolutions and empiricism. It has had three variants such as moral, political and legal variants. But its underpinning theme has been the overlapping thesis simplified as the correlation between law and morality. This thesis has appeal for those who want to enshrine morality into law but is unattractive for those who wish to understand the conceptual difference between morality and law and keep both distinct. Not to deny saying that an immoral law is no law or is a corruption of law does not explain the similar or different ways in which morality and law regulate human behaviour or activity. It is conventional wisdom that staring at a stranger is a moral wrong but given it is also a legal wrong -under the charge of battery- ruffles the feather. In the end one is compelled to question the need for parallel regulation and the extent to which they converge and diverge.
Legal positivism, on the other hand, is a new entry and is often attributed to the efforts of the analytical school. It has had two variants as soft and hard legal positivism. But its bedrock contention has been the separation thesis which is the idea that there is no necessary connection between law and morality. This thesis is attractive for those who prefer governance over rights but is futile for those who want to know about the situations or areas where rights defeat duties or rights trump policies. To say an immoral law is a law that does not take into account the possibility of situations that make the protection of rights the first duty of government and gives people the right to account for violations. It is no secret that governments make general laws to promote the greater good but if they made special law, instead, to fetch personal gain this would be a blatant breach of good governance giving rise to accountability.
Therefore, to understand the relationship between law and morality, on the one hand, and duties and rights on the other we have to re-structure the natural law vs legal positivism debate into the morality-human nature-law triangle.
Contrary to natural lawyers’ belief that morality is a collection of immutable truths worked out by reason, it is better to state that morality is the totality of minimum and maximum human expectations worked out by reason and the environment. The minimum human expectations are survival instincts and are the same for all whilst the maximum human expectations are developmental desires and are varied from place to place. On this logic, it is a universal wrong to kill another human being because such behaviour hampers co-existence but whether it is wrong if done under duress, drug influence or mistake really depends on resources, training, education and norms prevalent in society. Seen from this angle, morality is our first source of guidance to co-existence and development. The next thing to ask is the need for law’s co-existence. If morality is good enough then why resort to law? The answer lies in human nature. The inherent part of our nature such as self-centredness, transgression, power-hunger, greed, glory and impulsiveness sometimes make us violate morality which disturbs the equilibrium between human nature and our expectations. Although difficult it can be reclaimed through the specialized and institutionalized social ordering and sanctioning assured by law. The creation of law is therefore our collective faith in the restoration of harmony between morality and human nature through specialized knowledge of factors influencing us. These range from our capacities to evolve, learn, observe, co-exist and co-operate etc. Therefore, the real question is whether law facilitates a harmonized link between human nature and morality and not whether morality is part of it.
That said, it is contended that the rights-duties paradigm as discussed in my earlier column should be assessed from the lens of facilitation between human nature and morality and not as an overlapping thesis. It is clear that disrespecting elders is a moral wrong but it is an undeniable fact of our vulnerability that at times we lose ourselves to passion and disrespect them. It is exactly at this slippery moment that the specialized assistance of law is important by punishing disrespect of elders with sanction for facilitating behavioural change. As regards the highest duty of human beings and what is to happen if two duties collide, it is important to learn to walk first and run later. Therefore, to be clear it is important to separate our minimum duties from aspirational ones. It is always a good idea to bear in mind that it is our minimum duty to respect our parents and take them as the first beneficiary of our duty to be just human beings. Doing this requires communication and reasoning with them if they are ever at fault. This is because being just means being balanced and we cannot be balanced if we resort to violence in moments of disagreement.
The writer is a columnist with a special interest in Jurisprudence and Legal theory, British Constitution, and philosophy. She can be reached at [email protected]
