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Pooja Kriplani pursuing BBA LL.B. (Hons.) from Amity University, Rajasthan.

Date: 18.11.2020



Criminological Theory contains several theories that attempt to explain criminal behaviour. Some theories assume Crime is part of human nature also Crime is based on biological, psychological, sociological, and/or economic aspects.  If we understand the thematic review of criminal theory, these theories give some restrictions to keep us safe, some protect our property and some protect us from ourselves. A significant number of these laws reflect popular morality and social values. However, moral position and social change over time, altering what conduct is deemed criminal. In the 1950s, many democratic nations [1]had that made it a criminal offense to be gay, lesbian, or bisexual. This law regulates the private conduct of citizens even when it involved consent by both parties. In this, if we link between crime and morality we find out those Crimes against morality also a category of crime that is considered victimless because there is no specific victim, especially when committed against consenting adults. Morality is defined as a descriptive account o social and personal values about the ways people in the society should behave. This type of crime generally offends those values o a code of conduct. Those types of crimes include prostitution bigamy, pornography, illegal gambling, and illegal drug use.


The link between crime and morality

In today time link between morality and law are university held to be unrelated field and when In the modern world, morality and law are almost universally held to be unrelated fields and, where the “legal ethics” is used, it used, it is taken to refer to the professional honesty of lawyers or judges but has nothing to do with the rightness or wrongness of particular laws themselves of This is a consequence of the loss of the state of any “truth” This is a consequence of the loss of the sense of any “truth” about man, and the banishment of the idea of the natural law. It was observed that any sense of true human rights, it provides defence against unjust laws this is the easy way to see the reality of a person but most of the people have a mindset into superficial ways of thinking, they will do which day want to do for that the law is a set of formal rules and regulation which bind a community and regulate behaviour within that community.

The moral is essentials that define the values and norms to societies on what is right and wrong the similarities between law and morals are Laws are derived from morals since they are the final stage of the development of the morals of a people. All those laws are part of the moral of society because of the acceptance of such laws made by the same society because of the acceptance of such laws made by that same society. If we see scientific study and theories of law show the connection of laws and morality has much but the question for not yet as much clear and perhaps never will be settled. According to the doctrine held by Austin, it was defined that every variety of opinion has been entertained that for the jurist, the law is absolutely independent of morality almost opposite position, that morality and law are one.


The relationship between law and morals can be made from three angels-


Moral as the basis of the law[2] as it was observed that society no distinction was made between law and morals. All the rules originated from the common sources, and the sanction behind them was of the same nature.

Morals as the test of (positive) law[3] – It has been conducted by several jurists, since very early times, that law must conform to morals. This view was supported by the Greeks and the Roman.

Morals as the end of the law[4] – Morals have often been considered to be the end of the law. Several eminent jurists have defined law in teams of jurists.  They say that the law aims to secure justice.


 If we see philosophy idea in this matter we find out that it argued that morality can be seen as a relative concept. Meaning that not only different individual or group have different ideas and mindset, if we look at morality it will also change according to the time and this type of changes become a former regulation through laws. Influence of moral on law. The influence of morals on law they both act and react on each other. In the name of justice, equity, good faith and conscience moral have in filtered into all this fabric of laws in judicial lawmaking, in the interpretation of legal precepts, in exercising judicial discretion moral considering play vital role. Moral work as a restrain upon the power of the legislature because the legislature cannot venture to make a law that is completely against the morals of the society. Another thing is that all human conduct and social relations cannot be regulated and governed by law alone. They both are considered and regulated by morals. A number of actions and relations in the life of the community go on very smoothly without any intervention by law all this observe by morals and secured. So legal rules are concerned it is not the legal sanction alone that ensures their obedience but morals also help in it. thus we find out that moral perfect the law takes an example that ‘In marriage, so long as love persists, there is little need of law to rule the relations of the husband and wife but the solicitor comes in through the door, as love flies out of the window.

In the case of R vs. Dudley & Stephens[5] held that in this case Dudley and Stephens along with the brooks and parker (victim) were cast at sea without weeks of food and water except for some turnips and a turtle. After 20 days, Dudley and Stephens proposed after one person sacrifices himself in order to save the rest Brookes dissented while Dudley and Stephens decide to kill Parker since he was the weakest and youngest. On the 25th of July see, no one rescues them and Dudley and Stephens were charged with murder. The issue of the case was whether the killing of Parker was murder considering the circumstances of this case. Judgment was that Stephens and Dudley to be sentenced to death the necessity of hunger does not justify larceny, let alone murder. Stephens and Dudley choose that weakest and youngest to kill and it was not more necessary to kill him than any of the other grown men. They both were tempted to kill parker itself is not an excuse for murdering their unfortunate circumstances also do not lend leniency to the legal definition of murder.


We can say that morals and laws are the two side of one coin

That Morality seeks to influence our behaviour by way of our desires, whereas law is the ‘back-up’ option, and targets our beliefs. This was also said by the U.S as well, and not only in how our legally mandated school system and our criminal laws contribute to the shaping, including the moral training, of citizens. Yet the typical opinions in a contemporary liberal democracy are likely to be that morality cannot be legislated and even could even if morality could be legislated it should not like that to do so somehow improper, even tyrannical, either because there is no morality objective enough to justify legal enforcement or because one’s autonomy and individuality would be a violation by an attempt to legislate morality or perhaps even because one really has no autonomy that can respond to any external directive.


To understand more about relationship between moral and laws we can understand natural law theory and Positive legal theory-


Natural law theories as positive is or an instance of legal positivism and take their theories to be opposed to or at least clearly distinct from natural laws thorniest on the other hand did not conceive their theorist in a position to or even as distinct from legal positivism status of natural theory does not rely upon only acts but also religion, custom, ethics. This theory talks about what should be natural in intrinsic and not require any authority to impose it.


Positive law theory

Other side positive law theory  stems from the powers that have enacted it is type of law necessary as it is manmade or enacted by the state to protect the right of the individual the government to resolve civil dispute and lastly to maintain order and safety in the society. under this theory if anyone not follow the rules and regulations there will be punishment, Germany Bantham who is taken into account to be first positive is believed that laws should be supported on human experience and the positive law Minds at the quality for the action that are required and for those which are prohibited


In the case of Nimeshbhai Bharatbhai vs. State of Gujarat on 2 April[6], 2028 in this held that In this case, the court concluded that the wife can prosecute the husband under 377 of unnatural sex acts, fellatio and cunnilingus do not fall into that category. under the section 377 of a natural often should we apply whomever voluntary has done  intercourse against the order of nature with any man woman or animal shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to 10 years and shall also be liable to find

The judgment of the case was that it is evident that by crashing the FIR with respect to the husband as regards 376 and 377 the maximum potential sentence that can be award did to the husband false drastically from Life sentence 2 -3 years this is a major devalue waiting of criminal activity based and tire Leon the fact of marriage alone.


Let take example of current scenario of law and morality under section 377 of IPC, 1860[7] and morality provides the punishment for carnal intercourse against the order of and the section criminalized all the sexual acts which are not in step with the character and prescribe punishment for the identical however on 6 September 2016 the supreme court of but on 6 September 2018 Supreme Court of India decided that the applying of section 377[8] provide that lawful and reasonable and dependable and obviously arbitrary the constitution guarantee all citizens and independence of sexual orientation or identity their fundamental right the judgment prove that the court is concerned that safeguarding constitutional  morality not popular.

In the case of

we find out that moral is essential that defined the values and norms to society about what is right and wrong. The similarity between law and moral are laws are derived from moral since they are the final stage of development of moral of a people. we have been prone to think of crime too much in terms of which legalistic aspects and two little in terms of its community or culture sources the behaviour of a criminal always has normal or atypical in the restricted sense that it is a variation from some social norm established in the criminal law, but it is perfectly normal and typical when it subscribes to some cultural conduct norms others than that implicit the law Also constitution of India protects all facts of individual morality, and any conduct that mirrored image of diversity, cannot be labelled as Harm. Whenever is the manner in which the director of the individual is an administrator at the moral standard or by man-made law, They must be progressive in nature and should have that power to differentiate between long and grind it was also a fundamental necessity of the people must not be laid down with any form of Law.

[1] Democratic nations 1950

[2] Moral as the basis of the law

[3] Morals as the test of (positive) law

[4] Morals as the end of the law

[5] R vs. Dudley & Stephens

[6] Nimeshbhai Bharatbhai vs. State of Gujarat on 2 April

[7] 377 of IPC, 1860

[8] on 6 September 2018 Supreme Court of India decided that the applying of section 377

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