ABSTRACT
A Critique on Legal Moralism and its Impact on Pakistan Society
Aberrant acts can be classified in two basic categories.There are acts that are harmful to the interests of society ,individuals and other groups in the society and there are acts that are called moral evils and considered as harmful to the moral character of the person who has perpetrated those acts.In most of the societies of east to have sexual relationship outside marriage is considered as a moral evil and deemed at as some thing condemnable and abhorrent by the members .In various societies of east ,specially in Islamic societies, including the society of Pakistan, to drink is deemed at as an accursed act.
Social response towards these so called moral evils is of two kinds.In many societies of the east these acts are condemned only as moral evils and the perpetrators of these acts are never penalized.The penal code of these societies does not have any law that asks to give punishment to the perpetrator of a morally bad act like having sexual relation outside marriage and adultery .However, there are a few societies in which ,state has incorporated laws that ask for persecuting individuals who are involved in such acts.Pakistan is a country where sexual relationship outside marriage and adultry are abandoned by the law and people receive capital punishment for these crimes.These punishments are sanctioned by Islam and those who have imposed these laws say that such laws are necessary to create a morally strong and noble citizen who can live a life beneficial both for his own self and for his society.These laws being the offshots of religious doctrine ,enjoy a tremendous value among the people and are true representative of the collective moral consciousness of the society.These laws are constituted to guard the value system and the collective moral consciousnes of people.
The true condition however is very different and it seems as if these laws ,instead of giving moral courage to the members of this society, are devoiding them of it .First of all ,the law that regulates the cases of so called illicit sexual relationship is resulting in increased injustice.According to this law if someone accuses some one for having illicit sex relationship then the one who has brought the accusation is expected to bring four eye witnesses to prove the accusation.In case ,the person who has brought the accusation,fails to do so then he himself is persecuted by the sanction of law.Due to this law of witness any woman who goes to the court and reports a rape case ,receives a verdict against her because she fails to bring four eye wittnesses.And judicial history of Pakistan has plenty of such examples when a victim of rape was persecuted by the verdict of court for having illicit sexual relationship and for bringing false accusation to a so called innocent person.However, this law of wittness is not bad in as much as it prevents the possibility of a false accusation but this law is not correctly utilized and as a result the innocent and effected person fails to get any assistance from the law and law instead of helping the effected party convicts it for the same crime.
Since above mentioned phenomenon bears a direct relation ship to the phenomenon of legal moralism to the extent that it is resulted from an attempt to legitimize and appease the religious and moral consciousness of the society,this situation has raised certain questions regarding the role that legal moralism is playing in the society. First ,I believe that the presence of moral freedom is necessary to do a morally good or bad act.In a situation where to have sex out side marriage is abandoned by the sanction of law ,people don't have a choice other then to shun it.It does not allow them to chose freely out of the given choices.If people in Pakistan do not have a tendency of having sex relation outside marriage or perpetrating adultry then it can not be said that they are morally superior, because they don't chose it as a free choice.The question of morality appears when individuals are given a right to chose .My question is what this absence of freedom results in?In a morally strong character or in a morally frail character?
I think that there should be a wide space between moral law and penal law.Penal law should not interfere with an individuals morality and should not dictate individual's moral life.In a society where a morally bad act is considered as a penal offense , people can not grow morally.In such societies individuals are not expected to have sufficient moral strength , for, this arrangement is a hindrance in the way of achieving a morally sound character.Thats why in the cities of Pakistan people die helplessly after an accident on the street and no one is dare to help them or to take them to hospitals because people fear the response they would receive from the law enforcing authorities.And all this happens because people do not have enough moral courage.
I think that it is the false religious consciousness that is responsible for this miserable plight.For ,it is in the name of religion that such laws are constituted and given the authority to interfere with the personal life of an individual.The conflict between a higher ideal of society and the collctive moral consciousness is extremely clear.In Pakistan moral consciousness at times allows individual to perform honour killing.In the province of Sind a person who has an evidence that a woman among his relations is indulged in alleged illicit relationship with a male, enjoys the privilege to kill both of them and members of society accept this brutality under the canopy of a traditional custom called KaroKari.However in urban society of this same country people dont go to this extent to avenge the harm inflicted upon them by the perpetration of adultry by a woman of their family.Majority silently sanctions honour killing and does not describe it as some thing bad.
State , although it does not allow such a heinous act by the sanction of law,doesnot do much to prevent it either.State is not only responsible for legitimizing the moral consciousnessof the people but is also responsible for stopping the members of a society from bringing harm to themselves and to the other members.However ,ironically ,legal moralism is so much supported that even acts like Karo Kari are not publicly denounced.Due to this reason there is a genuine need to revise our philosophy of law.The aim of this revision is to know how moral law should be differentiated from the penal law and to what extent it should be differentiated ?What are the effects and implications in those societies where this difference is not maintained.
Research should be carried out to study of impacts of legal moralism on the moral development of society and individuals.Legal moralism states that the laws can be formulated to prevent individuals from showing behaviors that conflict with society's collective moral judgments. These acts and behaviors include even those which do not result in physical or psychological harm to others. According to this view, a person's freedom can be restricted by the authority of law simply because it conflicts with society's collective morality. Legal moralism implies that it is permissible for the state to use its coercive power to enforce society's collective morality.
The famous legal moralist Patrick Devlin, has worked on these issues therefore it is necessary to review his work in detail to find out why and on what grounds he has favored legal moralism so strongly.Delvin's notion that a shared morality is essential to the existence of a society and private acts which have not been wittnessed by any one can be persecuted if they are found to be in conflict with a societie's collective moral judgment, should be reviewed. Dr. Mohammad Iqbal ,the famous poet and philosopher of sub-continient has also written much on the issue of moral freedom.Thats why his notion of freedom of will should also be reviewed. legal moralism is a serious problem in Pakistan and due to legislature's overwhelming influence on the morality of the people there is no room left for individual's moral freedom.The number of checks enforced on individual are enough to suffocate his moral character.
A Critique on Legal Moralism and its Impact on Pakistan Society
Aberrant acts can be classified in two basic categories.There are acts that are harmful to the interests of society ,individuals and other groups in the society and there are acts that are called moral evils and considered as harmful to the moral character of the person who has perpetrated those acts.In most of the societies of east to have sexual relationship outside marriage is considered as a moral evil and deemed at as some thing condemnable and abhorrent by the members .In various societies of east ,specially in Islamic societies, including the society of Pakistan, to drink is deemed at as an accursed act.
Social response towards these so called moral evils is of two kinds.In many societies of the east these acts are condemned only as moral evils and the perpetrators of these acts are never penalized.The penal code of these societies does not have any law that asks to give punishment to the perpetrator of a morally bad act like having sexual relation outside marriage and adultery .However, there are a few societies in which ,state has incorporated laws that ask for persecuting individuals who are involved in such acts.Pakistan is a country where sexual relationship outside marriage and adultry are abandoned by the law and people receive capital punishment for these crimes.These punishments are sanctioned by Islam and those who have imposed these laws say that such laws are necessary to create a morally strong and noble citizen who can live a life beneficial both for his own self and for his society.These laws being the offshots of religious doctrine ,enjoy a tremendous value among the people and are true representative of the collective moral consciousness of the society.These laws are constituted to guard the value system and the collective moral consciousnes of people.
The true condition however is very different and it seems as if these laws ,instead of giving moral courage to the members of this society, are devoiding them of it .First of all ,the law that regulates the cases of so called illicit sexual relationship is resulting in increased injustice.According to this law if someone accuses some one for having illicit sex relationship then the one who has brought the accusation is expected to bring four eye witnesses to prove the accusation.In case ,the person who has brought the accusation,fails to do so then he himself is persecuted by the sanction of law.Due to this law of witness any woman who goes to the court and reports a rape case ,receives a verdict against her because she fails to bring four eye wittnesses.And judicial history of Pakistan has plenty of such examples when a victim of rape was persecuted by the verdict of court for having illicit sexual relationship and for bringing false accusation to a so called innocent person.However, this law of wittness is not bad in as much as it prevents the possibility of a false accusation but this law is not correctly utilized and as a result the innocent and effected person fails to get any assistance from the law and law instead of helping the effected party convicts it for the same crime.
Since above mentioned phenomenon bears a direct relation ship to the phenomenon of legal moralism to the extent that it is resulted from an attempt to legitimize and appease the religious and moral consciousness of the society,this situation has raised certain questions regarding the role that legal moralism is playing in the society. First ,I believe that the presence of moral freedom is necessary to do a morally good or bad act.In a situation where to have sex out side marriage is abandoned by the sanction of law ,people don't have a choice other then to shun it.It does not allow them to chose freely out of the given choices.If people in Pakistan do not have a tendency of having sex relation outside marriage or perpetrating adultry then it can not be said that they are morally superior, because they don't chose it as a free choice.The question of morality appears when individuals are given a right to chose .My question is what this absence of freedom results in?In a morally strong character or in a morally frail character?
I think that there should be a wide space between moral law and penal law.Penal law should not interfere with an individuals morality and should not dictate individual's moral life.In a society where a morally bad act is considered as a penal offense , people can not grow morally.In such societies individuals are not expected to have sufficient moral strength , for, this arrangement is a hindrance in the way of achieving a morally sound character.Thats why in the cities of Pakistan people die helplessly after an accident on the street and no one is dare to help them or to take them to hospitals because people fear the response they would receive from the law enforcing authorities.And all this happens because people do not have enough moral courage.
I think that it is the false religious consciousness that is responsible for this miserable plight.For ,it is in the name of religion that such laws are constituted and given the authority to interfere with the personal life of an individual.The conflict between a higher ideal of society and the collctive moral consciousness is extremely clear.In Pakistan moral consciousness at times allows individual to perform honour killing.In the province of Sind a person who has an evidence that a woman among his relations is indulged in alleged illicit relationship with a male, enjoys the privilege to kill both of them and members of society accept this brutality under the canopy of a traditional custom called KaroKari.However in urban society of this same country people dont go to this extent to avenge the harm inflicted upon them by the perpetration of adultry by a woman of their family.Majority silently sanctions honour killing and does not describe it as some thing bad.
State , although it does not allow such a heinous act by the sanction of law,doesnot do much to prevent it either.State is not only responsible for legitimizing the moral consciousnessof the people but is also responsible for stopping the members of a society from bringing harm to themselves and to the other members.However ,ironically ,legal moralism is so much supported that even acts like Karo Kari are not publicly denounced.Due to this reason there is a genuine need to revise our philosophy of law.The aim of this revision is to know how moral law should be differentiated from the penal law and to what extent it should be differentiated ?What are the effects and implications in those societies where this difference is not maintained.
Research should be carried out to study of impacts of legal moralism on the moral development of society and individuals.Legal moralism states that the laws can be formulated to prevent individuals from showing behaviors that conflict with society's collective moral judgments. These acts and behaviors include even those which do not result in physical or psychological harm to others. According to this view, a person's freedom can be restricted by the authority of law simply because it conflicts with society's collective morality. Legal moralism implies that it is permissible for the state to use its coercive power to enforce society's collective morality.
The famous legal moralist Patrick Devlin, has worked on these issues therefore it is necessary to review his work in detail to find out why and on what grounds he has favored legal moralism so strongly.Delvin's notion that a shared morality is essential to the existence of a society and private acts which have not been wittnessed by any one can be persecuted if they are found to be in conflict with a societie's collective moral judgment, should be reviewed. Dr. Mohammad Iqbal ,the famous poet and philosopher of sub-continient has also written much on the issue of moral freedom.Thats why his notion of freedom of will should also be reviewed. legal moralism is a serious problem in Pakistan and due to legislature's overwhelming influence on the morality of the people there is no room left for individual's moral freedom.The number of checks enforced on individual are enough to suffocate his moral character.
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