Why does the law bind people, and which law is binding? The answers that are attempted to this question often lead to discussions on interaction and relation (or lack thereof) of law and morality, and relate to the question of effectiveness of a law. The current paper aims to present these much trodden jurisprudential questions albeit in a novel setting. Focusing on issues of infringement of intellectual property and corruption as two examples, the paper aims to discuss whether the social morality of South Asia is adverse to the concept of ‘intellectual property’ or ‘offence of corruption’, and how much it affects the effectiveness of relevant laws.
Traditional jurisprudential analysis concerned with law and morality and their interrelation (or lack thereof) has given rise to a great body of work. ‘Law might ‘claim’ to be morally justified or to have moral authority; it may be true that the ideal or central case example of law is morally justified lawor that there is an ‘inner morality’ to the rule of law to mention just a few possible relations. Further relations between law and morality are suggested by claims that (at least) some laws have moral content; that (at least) some laws have moral consequences; that moral reasoning may be needed to interpret some laws; that law ought to be morally justified; or that law seeks moral behaviour in its subjects.’
The resultant body of jurisprudential literature, broadly reflected through the two persistent and dominant traditions of natural law theories and positivist theories, proceeds with certain postulates of ideas about law and morality, the modern iterations of which are shaped by the phenomenon of law in modern nation-states. The theoretical dialectics though entails some practical effects, one of the less-discussed issues within the law-and-morality discourse that may have more practical resonance is the impact of prevalent morality on effectiveness of a legal rule.
Whatever may be the exact nature of law, whether containing a minimum ‘moral’ part or not, its effectiveness ultimately relates to factors some of which are external to itself. Exploring the well-trodden question of reasons behind a ‘moral duty to obey the law’ provides answer such as consent, fair play, associative obligations, common good or gratitude; however it does not deal with the concurrent issue of effect of morality in obeying and disobeying tendencies.
It is in this context that the present paper seeks to contribute. Acknowledging that word ‘morality’ has differing and even contradictory meanings and contents, the paper limits its scope to consider morality in terms of prevalent social and ethical mores, hence the term ‘social morality’. The paper further proceeds to consider the question whether a legal rule entailing obligations not recognized by social morality would be effective. The effectiveness is illustrated through contrasting examples within the context of South Asia. The idea of property in product of human intellect, or intellectual property rights (IPR), is arguably foreign to traditional social morality of South Asia, which may be one of the reasons behind lack of effectiveness of IPR laws; however, the law can be regarded as having a subsequent effect on creating moral norm for respect of intellectual property in future. On the other hand, the widespread reach of traditionally abhorred practices of corruption may represent a contrasting trend, where a once morally prohibited practice becomes tacitly accepted, leading to erosion of effectiveness of anti-corruption legal rules.
Nature of Social Morality
The word ‘morality’ is used in two senses,an objective and a subjective one. The objective sense denotes that morality is rules of conduct and behaviour which is accepted by all rational persons as being appropriate, whereas the subjective sense denotes a code of conduct put forward by society as appropriate way for behaviour. Thus morality, in practical sense, is vague and variable, and its exact contours is hard to define even without recourse to moral relativism. The subjective sense, that is the ‘morality’ that the society accepts and considers as appropriate, is regarded as the meaning of the term for the purpose of this paper, and is referred to as ‘social morality’. It is variously related to the concept of law, though the two are not entirely the same.
Effectiveness of Law Depends upon Acceptance in Social Morality
The classical libertarian view of relation between law and morality is expressed by Mill as that law or power can only justly exercised to prevent harm to others. This is also known as harm condition. The opposing view holds that religious and moral rules acts as a real constraint on human conduct as much as the legal rules. These opposing strands tends to reflect more centrally on the questions of ‘validity’ or ‘bindingness’ quality of law, and is different from the empirical bindingness aspect of it.
Law is now associated with enactments of lawmakers of one kind or another. People distinguish between legal rules, which is enforced with the assistance of the courts, and moral rules, which are enforced by social sanctions and pressure as well as personal convictions. This was not always the case. In fact, the notion that law can be enacted by a specific legislator is alien to many traditional societies which considered that customary rules of conduct were binding upon them, although it was impossible to say how those rules were established.
In the natural history of humankind, deliberate law-making is a relatively recent activity, and considered as ‘unusual’ by anthropologists. It is not easy to separate law and morals when the law takes the form of social custom. Indeed, the history of development of modern families of legal systems, such as the Common Law and Civil Law, reflect how the social norms and mores of morality became subsequently accreted into a form of rules enforced by courts or legislated by legislators.
The genesis story of modern laws, thus, reflect the important role played by social morality (which is different from ethics) in determining legal rules and in creating social acceptance for them. As the law mostly reflected customary and social norms, the laws became traditionally accepted as binding. The positivist theory of seventeenth century and afterwards, in their attempt to define and describe a ‘pure’ theory and conception of law distinct from morality, gradually made the discussions on role of social morality in formulation of law in practice disappear. However, modern positivism recognizes morality a source of standard for assessment of legal rules.
The effective rule of law requires that citizens comply with the regulatory rules enshrined in the law and enforced by legal authorities. Most recent discussions of such compliance rest upon the idea that lawbreaking-behaviour is deterred by the risk of being caught and punished for wrongdoing. A law-abiding society is one in which people are motivated not by such fears, but rather by a desire to act in socially appropriate and ethical ways. Such a society is self-regulatory, since citizens within it take onto themselves the responsibility to follow the law. Thus, from a psychological jurisprudence perspective, morality plays a great role to produce law-abidingness and increase effectiveness of law.
Furthermore, Economic models also show that the enforcement of law itself depends on people’s morality, which determines their willingness to get involved. The importance of morality for effective abidingness of law is also explained by Lon Fuller’s exposition and differentiation (in another context) of morality of aspiration from morality of duty.
Morality of duty relates to the fundamental and essential moral duties consisting mainly of forbearances or negative injunctions such as ‘Do not murder’ or ‘Do not steal’. Morality of aspiration is the morality of striving towards the highest achievements open to human beings. A person is usually condemned for violating morality of duty, such as not stealing, but not praised for observing it. In contrast, a person is usually praised for displaying morality of aspiration, such as plunging into raging sea torrent to save a neighbour’s cat, but not condemned for the lack of it. If we imagine a vertical moral scale, the lower half will occupy the morality of duty and the upper half the morality of aspiration, ‘somewhere along this scale there is an invisible pointer where the pressure of duty leaves off and the challenge of excellence begins.’
This is a fluctuating pointer, hard to locate but vitally important. Social attitudes about rewards and punishments are important indicators of where the pointer rests. Fuller’s overall position was that law may fail by some standard of aspirational morality but will still be law. A law that fails the morality of duty is not law at all.
Even if someone does not agree with the contention of Fuller that the law that fails morality of duty is no law, one cannot fail to appreciate that such a law is less effective and binding.
Bindingness of law in adverse morality of South Asian: two examples
We now turn to explore the Bindingness or obligatory quality of law within the context of South Asian, with focus on the more prominent countries in terms of population and economy. The traditional values and social morality of people in South Asia came to direct reappraisal through interventions and interactions from the seventeenth century onwards by different colonial powers, most notable the British power. The modern South Asia that was born after the end of political colonization is still trying to find its own voice and approach towards various challenges that results from modernity. The duality and dichotomy of tradition and modern outlook to life is also reflected in the challenges faced by societies of South Asia regarding the role of morality in law or vice versa.
In exploring the role of social morality in creating Bindingness and effectiveness of law, two contrasting examples may be helpful. The first one relates to concept of ‘intellectual property’, which is absent in traditional morality, and introduced in this region chiefly during and after the colonial period in order to promote innovation, trade and commerce. The other example relates to perceptions regarding corruption, and how the ‘development’ fever turned it into something in the quality of ‘morality of aspiration’ without ‘morality of duty’ (as defined above), degrading the Bindingness and effectiveness of anti-corruption laws.
(1) Perceptions of ‘piracy’: moral respect for intellectual property
Despite being credited as one of the earliest cradles of mankind and longstanding heritage of advanced civilizations and glamorous cultures, the South Asian region never quite developed legal protections for expressions of culture. In this way, it in similar position to the adjoining Chinese civilization, which though invented the paper, ink and moveable type, did not provide protection for expressions on that paper, through that ink or type.
As the perception of morality changes from country to country, achieving a consensus on morality of IPR infringement is difficult. Jurists assign different types of justifications for modern intellectual property laws such as copyright, patent and trademark that developed in the West primarily. Among them the moral justification is a major one. This justification relates to the libertarian philosophy espoused by philosophers such as Locke, and the idea that a person owns his own self and ought to be able to exploit the profits of his intellect exclusively.
However, whether infringement of IP right is morally wrong in itself or for other external objectives remain a core debate. Also, the right of the actual creators vis-à-vis the right of intermediary corporations achieving disproportionately high profits (even considering the investment) is also another objection present intellectual property law regimes by its detractors.
Going into the moral aspect of protection of knowledge and intellect, one can see that the people in South Asia indeed was acquainted with the concept of theft of intellectual ideas. The presence of the word कुम्भिल ‘kumbhil’ and its cognates in Sanskrit, referring to a plagiarist, bear testimony to the presence of this concept. However, though it was morally reprehensive to steal another’s expression and pass it as one’s own, the idea of violation of intellectual property merely by use and share of ideas and expression did not take hold in reality, contrary to what some Scholars hoped that any advance in technology would, as a matter of evolution, mean advance in intellectual property protection.
Indeed, it may have been rather regarded as a virtue, as an effort ‘to share knowledge’ among people who deserved receiving it. There are anthropological modern interpretations of copyright piracy as ‘social banditry’ to contest existing capital accumulation system, or other various combination of social, psychological and cultural factors.
The exact nature and scope of intellectual property right is debated, and states have taken various degrees of approaches based on their economic status, cultural traditions and advances in trade, commerce and technology. The obligations of international trade and commerce has expanded the intellectual property rights’ ambit throughout the world, particularly through organizations such as World Trade Organization (WTO) and agreements such as that on Trade Related Aspects of Intellectual Property (TRIPS).
Debates abound even in West around the use of intellectual property without violating what is termed as ‘moral right’ of being attributed or credited. The digital revolution that began through internet made the previously separate public and private spaces of sharing and use much more converged and intertwined, resulting in what may be described as overarching reach of intellectual property law.
In such a social morality that is at best ambivalent towards acceptance of concept of an intellectual property, it is indeed difficult to make the laws work and be effective. That is why the countries of South Asia consistently falls behind indices on intellectual property rights compliance. For example, in a study on 45 countries representing 90% of global economy, India and Pakistan from the South Asian region ranked 43 and 44 respectively on the global level in protecting IPRs.
The mere ‘import’ of laws and accession to international agreements due to trade pressure does not reflect in the reality of social acceptance and awareness about intellectual property rights. Nevertheless, same as the effect of morality in law, the law also has an effect in promoting and developing social and moral norms. As part of ‘diffusion of laws’ globally with evaluations of ‘success’ and ‘failure’ of different legal systems, the intellectual property law also is promoted.
However, adoption of intellectual property protection mechanism in the legal regimes of South Asia that is sensitive to, and addresses adequately the demands of, traditions and cultures of South Asia may slowly change the terrain and introduce a new respect of intellectual property in the social morality of this region, as recent surveys show that the perception around intellectual property is changing towards rights-based protection.
Indeed, the current IP debates promises to be wide in scope and full of heat, encompassing issues such as traditional knowledge, incentives to innovation, industrial development, trade policy, access to available technologies, and effective commercialization in the age of knowledge-intensive industries.
In this wave the virtues and flaws of the system will be emphasized, discussed and celebrated.
(2) Anti-corruption laws and morality
“The common good of any society consists not only in its material possessions but in its shared ideals. When these ideals are betrayed, as they are betrayed when bribery is practiced, the common good, intangible though it be, suffers injury.”
Equally important, bribery and corruption are deeply at odds with the moral basis of most of the world’s great religions, which have often provided the moral underpinnings of the modern state, as is clear, for instance, by reading the U.S. Constitution and other such founding documents. However much the economists may disguise corruption in terms of costs and benefits, it still has a moral aspect to it. It is criminalized in virtually every country, although enforcement may be weak. The symptoms for considering the corruption as immoral or unethical reflects in the need for secrecy, for deception, and the use of euphemisms (gifts, contributions, speed money etc.) by the perpetrators.
Countries of South Asia (with exception of Bhutan) consistently rank even beyond 70 in global indices of corruption. Indeed, in a survey, two-thirds of people of this region responded that corruption increased in the previous two years in their countries. The reference to South Asia in international plane hardly passes without mention of the need to fight corruption in the region. Despite this, the corruption is on the rise, and is attributed as the reason for prevalence of poverty despite economic growth.
The reason is not lack of laws, rather lack of effectiveness of these laws or the will to make them work. To define corruption is a complex task. The official World Bank definition focusing on abuse of public power for private benefit does not actually reflect the true nature of the whole range of spectrum covered by the term. bribery, graft, embezzlement, kickbacks, nepotism, favouritism, extortion, fraud, bending of rules, gifts and ‘considerations’, and ‘commissions’ – all are grouped together under the same term, without reflecting on the dichotomy of public and private acts and motivations for them.
However, the idea of corruption as immoral or unethical behaviour no more corresponds to reality in much of today’s complex world, including in South Asian regions. Ethnographic study on West Bengal of India found that corruption is accepted as everyday practice, with justifications abound as exchange, reciprocity, and peer applause define this practice.
Other studies on areas such as Karnataka , and Jharkhand in India, reveals the lack of social constraint on every day corruptions. It represents a consequence of political economy of historical experience of the state as a remote entity, to be dealt with a medium. Ideas of morality in this instance are thus historically constituted, managed and reproduced. ‘The moral aspects of corruption have to be seen in the context of values such as negotiability, hierarchy, greed, and above all, uncompromising loyalty to one’s own caste or community.’
The trend can safely be deemed to be same everywhere else in South Asia, due to shared history, experience and culture. The ambivalent attitude towards immorality of corruption may be said to be a major contributing factor in the inefficacy of anti-corruption laws in South Asian countries. Much of the laws aimed at combating corruption have the underlying philosophy of eliminating the opportunity for corruption by changing incentives, by closing off loopholes and eliminating misconceived rules that encourage corrupt behaviour.
Such approach is ineffective and expensive, needing institutional infrastructures for monitoring and enforcement that generates far more corruption, in an ever growing circle. Anti-corruption legal drives are likely to be far more effective if they are also supported by efforts to buttress the moral and ethical foundation of human behaviour in the long-term perspective, addressing the issues and creating awareness at the same time about the place of individual in today’s society, relationship between state and a person, government’s changing role from ‘ruler’ to ‘representative of people’, as well as corresponding civic responsibilities of individuals. Because, however may be the prevalence of corruption, its tacit acceptance is still tainted by a sense of immorality-paving the way for a possibility for a universal definition of corruption.
The process of law-making and law-implementation should consider the relevant social morality and actual reality on the ground in order to be effective. Such a realist attitude, if it may be called, is not a call to surrender the law to regressive views of the past, rather to increase the effectiveness of law. Such an exercise and perspective is also healthy for detractors of uniform universalism and promoters of cosmopolitan pluralist jurisprudence.
Two contrasting examples discussed in the paper elucidate this point. IPR violation was not present in the moral sense of people of South Asia in the past, and that contributed to lack of effectiveness of laws protecting IPR; however the perception is changing and with that the compliance rate too. On the other hand due to widespread practice, corruption, though viewed as immoral from objective ethical sense, gains acceptance in social morality and regarded merely as ‘morality of aspiration’; which leads to corrosion of bindingness of anti-corruption legal rules.