As of the State is to make
As an Indian adage goes: as the King so is the subjects. Similarly, ideas of right and wrong, which represent the ethical standards of the people, affect the laws of the State, in their turn, and its actions. The State, thus, performs a direct function in relation to morality and it takes two forms, positive and negative. The positive function of the State is to make laws which are conducive to the general happiness and are in accordance with the moral beliefs and sentiments of all sections of the community.
For instance, untouchability is prohibited by the Constitution and in pursuance of this prohibition the Government of India has enacted legislation making its practice a penal offence. It is a moral sin to differentiate between man and man simply because of accident of birth. Similarly, it adds to the moral stature of men and society, if the laws of the State make drinking a penal offence. When the State repeals a bad law either by itself or as a result of public protest it performing a negative function. Since our standards of right and wrong change, so laws too must change in conformity to such changes. Suttee and Thugee were declared illegal acts as they did not accord with our changed standards of virtues or values.
So close is the affinity between law and morality that “the margin between the illegal and the immoral is not always clear.” The illegality of today may become the immorality of tomorrow and vice versa. “We regard the State,” as Maclver has said, “as the condition of morality. The State and law continually affect both public opinion and actions; in its turn law reflects public opinion and thus acts as the index of moral progress.
” Sometimes laws precede the public demand, and are made before their utility has been fully grasped. The Hindu Marriage Law in India was enacted at a time when public opinion in its favour was not well advanced. In fact, there was violent opposition to it, though its social value could not be denied.
In the last analysis the sanction behind both law and morality is public opinion.