Constructivist Understanding of Interaction between Law and Morality in Identity Formation


Tripuresh Pathak*

Assistant Professor (Political Science), Government Vivekanand P.G. College, Maihar, Dis. Satna (M.P.)

*Corresponding Author E-mail:



Positivism contends that knowledge is acquired through collection and processing of objective facts that must be further subjected to analysis. Verstehen tradition contends that understanding the intentionality of actors is very important in gaining knowledge in social sciences. Constructivism contends that Reality is shaped due to inter-subjective meaning attached to events by relevant actors and institutions. Constructivism adopts middle path between Individualism and Holism. Identity is given lot of importance in the Constructivist Approach. Morality refers to the basic principles and values that play great role in defining the permissible limits allowed to members of given society. It helps in self conception of a group and is a great stabilising force. Law refers to the regulation of activities supported by a strong sanctioning authority. Law often supports the notions of Morality, though there may be a variance between the two notions. Identity is subjected to flux and notions of morality change with impact of social, economic and technological forces. Law is also modified to ensure smooth change in basic norms governing an identity. The impact of Religious Fundamentalism is very important in orthodox societies as many religious leaders support old values and laws even in the context of tremendously changed time.


KEYWORDS: Constructivism, Law, Morality, Verstehen, Identity, Crystallization.




Constructivism is very important approach in International Relations. It has made great inroads in the epistemology and ontology related to International Politics. Epistemology is branch of knowledge that deals with study of nature of knowledge. The epistemology of Constructivism has amalgamation of both Positivistic and Verstehen traditions. A comprehensive treatment of Positivism first appeared in works of Augustus Comte while development of Verstehen is rightly credited to Max Weber.


Positivism refers to the method that believes in acquiring knowledge in social sciences by collection of objective, external facts; processing the information and then analyzing the information contained in facts to develop theoretical knowledge of the given branch of knowledge. The researcher is believed to be value-neutral and the knowledge is believed to be of same order as that of natural sciences with universality and potential of predictions. The perspective of actors and players is to be gauzed by the facts and there is no need of looking into the intentionality and perspective of the actors and players. Only that aspect is emphasized that can be expressed in objective terms.


The tradition of verstehen makes subtle differences between social sciences and natural sciences. Verstehen lays emphasis on the importance of intentionality and understanding in Social Sciences. It believes that not much can be gained from focus of external facts only as actors in social, economic, religious and political fields as players are much guided by their perspective of the world. The facts can only show some aspect of their tendencies, but the important work of knowing their respective worldview cannot be properly mapped using Positivistic framework. There is need to understand the meaning attached to different values, norms and images by such actors. The concept of Verstehen denotes that human individuals cannot be quantified. (Gann, 2017) Needless to say, Weberian tradition has strong imprint on many approaches that developed in the field of Social Sciences in the 20th Century. Deconstruction, for instance is an effort to understand the intentionality of players from close reading and contradictions inherent in the relevant text. Discourse Analysis is also an effort to understand the meaning of various events and nature of social relationship in the context of knowledge-set that is held to be true in given time and space.


Constructivism makes an effort to use important features of both these traditions. Constructivism makes an effort to understand the perspective of different actors and institutions. It contends that reality is constructed due to inter-subjective meaning attached to events and processes by different actors and institutions, relevant in International Relations. Constructivism aims to understand the perspective of different players by proper contextual analysis of relevant acts, commissions and omissions of actors reported through credible source, content of significant and relevant official state documents, important speeches of relevant actors and various reports that throw light on important aspects related to formation of identity. Constructivism is open to Positivism as it makes use of available facts and resources relevant to the field of study, but is not limited by the availability of data. It does not give as much primacy to numerical data analysis as is given by many statistical models that have developed in close alliance with Positivism. It has been regarded as middle ground between Interpretivist Approaches and Positivist Approaches.(Adler, 1997)


Constructivism adopts the middle path between ontological tradition of Individualism and Holism. (Wendt, 1999, Pp.26-29) Ontology is branch of knowledge that deals with study of nature of existence. The tradition of Individualism contends that the individuals are the key determining factors in the formation of society. It believes in the autonomy of every individual. It believes that society is reflection of desires, tendencies, affiliations and dejections that exist at individual level. It is not possible to understand social tendencies without having an in-depth knowledge about the individual. Holism on the other hand, contends that the main unit in society is the structure of society itself that casts its influence on the members of the society. The rules and regulations approved by society cast a great influence on the the individual members as there is strong aspect of rewards and punishments that is linked with the observation and breach of such rules and regulations. The structure determines the cognitive apparatus of the individuals in social aspects and thus determines the mores of society. Constructivism aims to adopt the middle way out of these two extremes. It tends to creatively engage both these approaches in order to get a better picture of reality. It contends that the reality is based on the assumptions and propositions of individual regarding correct and incorrect values, norms and principles. The individuals have important role in developing their understanding regarding such norms and values, but they do not live in isolation from the social forces. The social structure does play an important part in determining values and belief-sets of individuals. The individual is not helpless against such structure as structure, in turn, depend upon continous repetition of such norms and values at individual level. When such repetition stops occurring or occurs at lower levels of frequency, the structure undergoes an important change. Thus, the Constructivist understanding is very important in making critical analysis of structural statics and structural dynamics, through interpretation of behaviour of various actors. It must be stated that this feature of Constructivism that strikes a great median between the individualist and holist approaches, has benefitted a lot from the insight of Structuralism. 


Constructivism gives very important place to the formation of identities and makes concentrated study of norms and values that are attached with different identities. Identity is an important determinant of the foreign policy of actors. (Zehfuss, Pp.38-93) Identity brings a sort of constancy in understanding the dynamics of International Politics as identity tends to remain more or less the same amidst all major political upheavals. Identity is very important line of demarcation that enables members of one community to locate themselves in the context of other communities. Identity has become very important angle along which International Politics is constructed in Post Cold War era where there has been end of conflict between two rival ideologies of Communism and Capitalism. The dynamism of identity is related to the way distinguishing features of identity are defined and maintained while understanding the subtle modifications and adaptations that such features undergo.


Law-Morality Interaction:

Morality is a very important phenomenon that regulates the activities of members of a group. Morality varies from place to place and time factor is very crucial in understanding the focus and force of different moral values. There are also some moral values that have powerful existence in one form or the other, in different civilizations, during different epochs of history. Morality is determinant of social structure as it regulates the hierarchy to be maintained in society. It is related to the division of work among different members of the society, the relative power and prestige enjoyed by different groups and is key determinant in maintenance of solidarity throughout the society and groups within the society. Morality works as a great force of stabilization in different societies. The great change in society is accompanied with corresponding change in moral values.


Law is a means of Crystallization of moral values. Crystallisation is process by which amorphous values acquire definite shape. The moral values may exist in the common consciousness of the public, but they lack precise statement. When they take the form of law, they become important sanction that can only be breached at great risk by the individual. Law includes codified texts that has reduced long observed customs in a written code and statutory texts that consist of provisions that been ratified by the modern legislature. Law extends to customs and conventions that are observed in a society, though modern tendency has been to reduce all such unwritten customs and conventions into texts. Laws are great means that express morality of a community, though the scope of law extends to many technical and procedural aspects as well that has little to do with morality. Morality and Law are not same, though they have great influence on each other. The development of Law has been influenced by Morality. (Hart, 1963, p.1) A complete dichotomy between law and morality is unsound. (Scheller, 1953) There is some interrelationship between the state machinery and the social opinion of the community. (Friedman, 1972, Pp.21-22) There are various values that are believed to be immoral, but are not prohibited by law per se due to difficulties in implementation and unnecessary encroachment of the state machinery. In many parts of the world, There is no prohibition on alcohol and smoking cigarettes in spite of it being perceived as immoral. This is because it would be difficult to impose such laws and there is fear of emergence of parallel black market in goods. Similarly, there may be legal values that may appear immoral to many members of community, but are imposed in order to bring alteration in practices of society. The reforms ushered in by Kamal Pasha Ataturk in Turkey did appear as immoral to many conservative sections of Muslims in the Turkish society, but Kamal Pasha sought to make Turkey modern and western by taking it closer to value structure of Western society through such reformative laws. Similarly, the provision of equal rights to all citizens in India by the Indian Constitution did appear as improper to many conservatives and orthodox people, but it was done in order to do away with the gross injustices imposed by the hierarchical social structure prevalent in India. 


Identity is not formed in a vacuum. There is impact of different social, economic and political factors that determine the formation of identity and its relative flexibility. The interaction and interplay between such forces affect the final shape that is taken by the identity. Morality is affected not just by social conventions and beliefs, but is greatly shaped by the relative economic and political power of various groups in a given structure. The change in relative power of various groups is often accompanied by the demand of change in relevant laws. The change in laws may also transform the morality of older order to great extent. The feudal laws assume the exploitation of labour of servant for his master as an act of duty and this is appreciated in great terms. The dawn of capitalist system changes the relationship and there are only free people who have right to enter into contract with each other. The freedom of contract is sanctified and the terms and conditions of contract regulate the behaviour between parties. There is minimal power left for the state to intervene and make some laws related to valid and invalid contracts. The exploitation of labour in capitalist system led to demand for organization of workers unions. Karl Marx developed theory of revolutionary change that supported the workers to fight against the unjust system and replace it with system that it would have dictatorship of class in the transitory stage and establishment of classless society as its objective. There was successful Revolution in Russia and China though they had not yet become industrialized country. There was focus on Industrialization in Russia and on agriculture in China. The morality associated with the state was linked to the equitable distribution of goods and services among the workers. Laws were framed for this objective. Thus, there was great emphasis on economic equity in the entire legal system. Morality was not associated with means and avoidance of violence but with the level of commitment to the revolutionary goal of establishment of classless society. The identity of these Socialist states was mainly located in economic terms and there was an effort of extricating the nation from the shackles of language, race, religion, region and other barriers. The Socialist label attached with these states may not be called identity if the term identity is just restricted to Ethnic aspects. It must however be stated that the interaction of Morality and Law in these states aimed to come overcome all the values that have been transmitted through history. This was done on the premise that all such values reflected feudal sense of morality that had to be replaced with Communist philosophy of morality.


The pressure created by Communist movement and restlessness associated with inegalitarian distribution inherent in the functioning of Capitalist system resulted in development of welfare state in many developed and developing countries. The concept of welfare state maintains the rights and liberties of citizens while giving important amenities to the working class in form of subsidised food, better health and educational services, social security benefits like unemployment insurance, sickness relief fund, pension in old age etc. The people are free to retain their identity as per their belief and thought. The question of identity is thus left to individual autonomy and once the identity consciousness finds support of people, identity becomes very important factor. The morality in welfare state is not much dictated by the state. The people are given the freedom to practice and propagate their notions of morality as per their wish.  It was only when the practice of morality came in conflict with law that the practice was prohibited. The morality factor remains as it is in liberal political order, i.e. minimal intervention of state and sanctity to be attached to voluntary entered contracts.


The relationship between law and morality has very important implications in deeply religious society. This is because there is pressure on law makers to align the laws of the political system along with the religious beliefs of the people. Morality is held to be synonymous with the practice of religious principles. There is no doubt that most of the ancient religions had a comprehensive code that dealt with vital aspects of society, rights and liabilities of individuals and many areas of civil and criminal law. There was an effort to solve many contemporary social evils in those codes and strong sense of moral purpose and ideal of good life was created due to such codes. But, time has changed the demands and aspirations of people. The present socio-economic structure is so complex that it cannot be worked out within the confines of old laws, rules and regulations as the old legal structure was designed for its own times and not for the contemporary problems. There is need to appreciate the strict sense in which the letters of law are interpreted. The entire legal framework is supposed to guide the actual functioning of institutions and provides for implementation of provisions that are well drafted. There is difference in being benefitted by insight of old norms and quite other thing to run as per the old legal provisions. If there is no provision for detailed functioning of institutions, there will be probability of great anarchy, irrespective of the fact whether law exists or not.


Religious Leaders, Law and Morality:

The religious leaders have not much respect for modernity and they tend to justify the old tradition and practices as per the dictates of religious texts. There is struggle between the religious prescriptions and demands of modernity. The political arena becomes site of struggle between the two forces. The dynamism of functioning of both religious and modern forces is not universal. It varies from place to place. It assumes different forms as per the tenets of given religious belief; the scope of flexibility in the given religion; the religious-political nexus; the degree of freedom of political forces from the religious leadership and the level of acceptance of religious values in the society. When the religious force is very much powerful, it casts great influence on the law making power of the state. There is every effort to bring law in accordance with religious notions. Pakistan is a great example in this regard. Pakistan described itself an Islamic Republic. There is a provision in Pakistani Constitution that sets up a council, the function of which is to ensure that all the laws of Pakistan are brought in line with the Shariat. There was great movement in 1952 that called for abolition of description of Ahmaddiyas as Muslims as they do not believe in the principle of Khatm-e-Nabuwat, i.e. Prophet Muhammad as the last prophet in Islam. In 1974, the Pakistani Constitution was amended and Ahmaddiyyas were denied being Muslims as result of the provision contained in the amendment. The great protest seen in Pakistan in November 2017 is related to lack of proper provision of the principle of Khatm-e- Nabuwat in electoral laws in recent past is an example in this regard. The protestors want to inculcate the religious principle in electoral laws at every cost. Thus, Khatm-e- Nabuwat has played important part in Pakistani political history. The principle is related to the finality of not just prophecy of Prophet Muhammad, but also gives very high sanctity to the laws made by him as no other lawmaker after him could claim the his level. The laws contained in Shariat are not just legal, but also moral for Muslim. Thus, morality and legality are deeply intertwined is the Islamic jurisprudence. The application and enforcement of such laws give the Islamic identity to the state where such laws are practiced. The religious identity is allowed to rule above other common factors that are being faced by the human race like rapid technological development; great strides in scientific knowledge; climate change; discourse related to human rights; etc. Thus, legal structure is the bedrock on which identity is allowed to flourish.


The identity is the ultimate image in which the members seek to refer and define themselves. The matter of identity is often a tale of pride and self-respect among the members of the identity. Identity not just sets up important line that helps in distinguishing a member from other group, but it becomes a part and parcel of his lifestyle. Identity is the precise statement of basic values and practices of a group that are considered as essential, though there is ample scope for difference in statement of ideals and real practice. Identity requires expression of those values and practices in real life in such a way that such values are not just transmitted across generations and people of varying attitudes, but the dissidents are made to pay a price for the breach of such values. The law is an effective mechanism that performs this role. The law not only states the principles, norms, values and idea sets related to the functioning of an identity in simple and clear terms, but also provides for action against the people who break such codes. Morality helps in keeping the collective consciousness in line with the dictums of identity and it is spread through popular tales, perception, social approval, social criticism and boycott. Morality reflects the sense of justice and fair play in vogue in a given society. Morality lacks well defined and codified mechanism of implementing the values and norms, but the means by which it morality is enforced can be even more powerful than legal provisions.


Importance of Constructivist Critique of Law-Morality Relationship:

The relevance of critiquing morality-legal nexus through constructivist lens has many benefits. The first is the understanding that even though terms like Natural Law and Universal Morality may be extremely important, there is much about law and morality that is shaped by the interaction of actors and institutions of society. This is important as it will help the scholars of jurisprudence to locate law in the actual dynamics of social and political forces and not just confine themselves to the logical analysis of assumptions, propositions and deductions related to legal principles. There has been whole complex of practices, attitudes and theories that has been challenging notion of man being responsible centre of action. (Fuller, 1964, Pp.162-167) The philosophers of ethics will also try to get sense of understanding basic political and social factors that affect the nature of morality practiced in given society. This will add pragmatism to their approach and help them to aid in proper development of new norms of morality in the era of fast changing technology. Deductive and Inductive Methodology both may be synthesized to reach the proper conclusion regarding the dynamism of ethical structure. This will break the shell of hair-splitting argumentative culture that may have led to great debates and scholarly work of great repute, but has reduced the reputation of scholars in providing solutions to the conflicting situations that are faced by people in day to day life.


The second benefit of constructivist analysis of interplay between law and morality is that it helps in proper understanding of the essential features of an identity as they are perceived by the members of given identity. The knowledge of basic features coupled with the knowledge of mode of expression of such beliefs, values and norms and level of sanction associated with breach of such values help us in understanding the basic thought process of a group. This helps the scholar in proper location of an identity consciousness vis-à-vis other identities. It is essential to realize the significance of accommodation and opposition to other groups that comes with consciousness of oneself. If there is ability in the group to work along with the belief system of other groups, then there is scope of peaceful relation with other groups. If there is simple opposition of values and attitudes that are different or negation of beliefs and practices of members of group, the chance of good and peaceful relation is reduced. The demographic profile of different identity groups is important to be known and evaluated. This is because scope of cooperation and conflict is related to the man-power that is associated with given identity. The assessment of level of homogeneity in an identity group can be well made by critical analysis of legal provisions. If there are strong provisions regarding strict rules of morality, then we can estimate that there is more uniformity in values in the identity or ruling class is aiming to establish greater homogeneity. But if there are less reference to such moral codes, we can assume that there is either greater diversity or the ruling class is allowing the prevalence of different moral preferences among the people. The constructivist analysis helps us in improving our estimation of the probability of good relation that exist between two and more identities on the basis of their core values. This has become highly relevant in Post Cold War era where the fractures around ethnic identities have increased to a great extent.


Thirdly, constructivist analysis helps us in understanding the dynamics of law and morality in the era of tremendous technological development. The way an idea, law or moral becomes obsolete, explains the impact of social, economic and technological dynamism on our way of thinking. (Pathak, 2017) The pace at which such norms and values can change can help us in proper evaluation of legal and moral evolution. This can be creatively engaged with normative discourse to understand the positive and negative sides of change in discourse related to morality and law.


Last, but not the least, Constructivist analysis helps us in knowing about the obstacles that prevent proper formulation and implementation of laws that are beneficial to all the groups in the society. There are factors of administrative inefficiency, corruption, loopholes in legal provisions; but very important factor is the contradiction between spirit of law and spirit of morality in the given society. If the contradiction is solved by spreading the relevant knowledge among the people; and change in attitude of society in correspondence with economic and technological improvement along with spread of scientific knowledge; then we can expect that government policies of all societies will lead to vulnerable sections of that societies. This will greatly uplift the level of human welfare throughout the world.



The relation between law and morality is very complex. It has been interpreted and defined in various ways and the entire corpus of debate between Idealist and Positivist Jurisprudence revolves around the acceptance and rejection of morality as supreme guiding factor of law. The constructivist interpretation becomes important because it tends to locate morality and law in the sphere of interaction between relevant actors and institutions which are inter-related and inter-dependent. The nature of reality related to law and morality is inter-subjective. Constructivism avoids extreme paths of objectivity and subjectivity as it tends to locate inter-subjectivity as a form of interaction with objective conditions and circumstances. Constructivism helps in appreciation of legal provisions and moral considerations in very dynamic manner as interplay of various social, religious, economic and technological forces are taken into account. The evaluation of identity in light of the process of crystallization of morality into well stated, clear and written legal codes from amorphous form of moral values helps us in reaching to the core of identity. The role of identity in shaping behaviour of various groups is immense as the core values of identity determine possibilities of co-existence with other identities. Identity evolves and develops over long period of time in given geographical setting and is influenced by economic and technological factors. The role of various actors and institutions in shaping the type and constitution of identity is important. Thus, analysis of interaction between law and morality in shaping and moulding identity through its impact on construction of permissible and prohibitory acts is very important in knowing the positive and negative sides of developments associated with modernity.



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2.        Friedmann, Wolfgang. (1972) Law in a Changing Society, Second Edition. London: Stevens & Sons.

3.        Fuller, Lon, L. (1964) The Morality of Law. New Haven: Yale University Press.

4.        Gann, Patrick. (2017) ‘An Explication and Application of Max Weber’s Theoretical Construct of Verstehen’, Journal of Social Work, Values and Ethics, (14), (02), Pp.30-34. Accessed on 12/11/2022.

5.        Hart, H.L.A. (1963) Law, Liberty and Morality. Oxford: Oxford University Press.

6.        Pakistan Constitution (Second Amendment) Act, 1974. Assessed on 12/11/2022.

7.        Pathak, Tripuresh (2017) ‘Constructivism in the Era of Technological Singularity’, Indian Journal of Society & Politics, (04), (03), Pp.43-48. Accessed on 12/11/2022.

8.        Scheller Jr., Arthur. (1952-53) ‘Law and Morality’, Marquette Law Review, (36), (03), Pp.319-327. Accessed on 12/11/2022.

9.        Wendt, Alexander. (1999) Social Theory of International Politics. Cambridge: Cambridge University Press.

10.      Zehfuss, Maja. (2004) Constructivism in International Relations: The Politics of Reality. Cambridge: Cambridge University Press.






Received on 16.11.2022         Modified on 19.01.2023

Accepted on 17.03.2023      ©AandV Publications All right reserved

Res.  J. Humanities and Social Sciences. 2023;14(1)11-16.

DOI: 10.52711/2321-5828.2023.00003