LAW & MORALS

THE DIVERGENCE OF LAW AND MORALS
One key distinction between law and morals is in the sanction both provide. Law provides sanctions like fine, imprisonment and death but morality provides no such sanctions because the latter is largely guided by public opinion. But this is not to say that a breach of morality is without consequences. For example, a person could be debarred from marrying from a particular family.

The positivist believe law is inherently different from morality in terms of procedure and source. To them, law is made from conscious, formal procedure whereas the creation of morality is informal since it just grows or emerge. Furthermore, law has a clear source (whether legislative, monarch or military) while morality is amorphous.

Another key area in the divergence of law and morality is in their judgement. While the law prescribes right or wrong judgement, morals prescribe good or bad conduct. What law may prescribe as right may not necessarily meet the standard of ‘goodness’ in a society. Note the example of a scoundrel made by prof. Also, it must be stated that there is apparatus which ensures formal means of enforcing laws while in morality, no such apparatus exists.
In terms of scope, the law tends to be general and universal as it transcends the territory of a state making it certain and rigid. Morality on the other hand varies from place to place; the rules of morality are culture-specific and geography-bound.
According to Immanuel Kent (a German philosopher), while the trust of law is external, that of morality is internal. Everyone has a god in them that tells them what to do. But the rule of law is external as it is interested in the externalities of human conduct.
We must also note the contribution of Karl Marx who posited that the number of codes of morality in a society depends on the classes in that society. Thus, a judge’s verdict will depend on his socio-economic background.
The naturalists have also argued that law and morals are ecocentric as both are in a state of continuum, one leading to the other. Natural law theorists like St. Augustine, Thomas Aquinas, John Finnis and Lon Fuller argued that an unjust law is no law at all, that is, only good law is law.
Ultimately, some jurists believed law and morals have a certain relationship both intercepting at a certain point.
The problem of divergence of law and morality stems from the heterogeneous nature of the society making it difficult to arrive at the same moral judgement. But there is a minimum content of morality beyond which society cannot accept. Thus, the state will outlaw such conducts (e.g. prostitution, homosexuality, abortion) it feels it has to outlaw using the notion of propriety. The question then is to what extent can an immoral law be valid?
Lon Fuller suggests that for law to be possible, law must have inner morality. In essence, a valid law must conform to eight desiderata:
1. Law must be general in the sense that it applies to everyone as opposed to a group of people. In essence, law must not discriminate.
2. Law must be promulgated as to make everyone aware of the existence of such law. Law must not be something that can only be found in the chest or breast of the lawmakers. This is why Decree 1 of 1966 was severely criticized for allowing the Head of State to pass laws just by mere speaking.
3. Law must be clear and unambiguous. In essence, the law must not approbate and reprobate.
4. Law must not be retroactive or retrospective. Lon Fuller described a retroactive law as the brutal absurdity of commanding a man today to do something yesterday. He however recognized tax law as an exception since a man must earn his income before he can be taxed.
5. Law must not command or demand the impossible. It must reflect social reality. Note the dead letter example.
6. Law should bind both the lawmakers as well as the public at large.
7. Law must be certain so as to make it predictable.
8. Law must not be so rigid that he can’t be amended.
Note: You can’t discuss law and morality without talking about Lon Fuller.

LAW AND RELIGION
Religion is concerned with the relationship between man and his god while law is concerned with the relationship between man and the state. Unlike law, a vast majority of writers believe religion is a matter of dogma, faith, belief and as such cannot be modified.
Religion has been described as the highest distillation of morality. There appears to be a distinction between a heterogeneous society and a theocratic one. In the former, one law cannot be imposed on the diverse peoples within that state. It is because of the heterogeneous composition of a state like Nigeria that Sharia law can’t govern all the people in it. Here, there is a clear distinction between sin and crime. Sin should be punished by a man’s god while crime punished by the state. On the other hand, there exists no such distinction in a theocratic state like Saudi Arabia where sharia is supreme thus making sin and crime one and the same. Here, the law governing the whole state is one and supreme.
Professor Oyebode in his lecture argued that due to the complex nature of religion, it should not be the basis for society. He is of the opinion that the question of religion should be between a man and his god as such the law should be neutral and should only interfere where the rights of another member of a society are likely to be infringed. In short, in matters of religion, man cannot be a judge except it is a theocratic state.
As seen from the above that religion has a huge impact on morals and this has made a lot of writers regard it as the highest distillation of morals. But the positivists have reiterated the need to separate crime from sin. While sin should be a matter left for the supernatural being, crime should be a matter within the exclusive purview of the state. It is therefore the submission of this writer that religion is a personal issue which should be left between a man and his god while law, a matter between one and the state.
The erudite professor noted the Nigerian example where a few states have passed religious laws (sharia) which is in contravention of S. 10 of the constitution which is to the effect that the government of the federation or of a state shall not adopt any religion as state religion.

Law and the Enforcement of Morals
To what extent can law be used to enforce moral standards? In other words, to what extent is it viable to use law to change behaviour that is normally of bad conduct? First, we must note that law should be seen as an instrument to raise human behaviour. Just as Socrates noted that people must be told that law is for their good.
It is quite possible for law to be used to enforce morals but law does not cure all ills. In other words, moral suasion even when grounded in law is not sufficient. For example, in fighting corruption, it is not enough to use extant legislations on corruption alone, the state must go further to pay people well and as at when due.
We must note that the dominant ethos or morality in any society is that of the ruling class. The lawmaker is the ruling class while the poor masses take whatever the ruling class pass as law. Even the courts that interpret and adjudicate on matters interpret the morality of the ruling class. In Shaw v DPP, the appellant published a 'ladies directory' which listed contact details of prostitutes, the services they offered and nude pictures. He would charge the prostitutes a fee for inclusion and sell the directory for a fee. He was convicted of conspiracy to corrupt public morals, living on the earnings of prostitution and an offence under the Obscene Publications Act 1959. The appellant appealed on the grounds that no such offence of conspiracy to corrupt public morals existed. The appeal was dismissed. The House of Lords in effect created a new crime. Arguably, the decision can be said to have been reached on the ground of public policy. It must be noted that judges have inherent powers to stop vices just like treason. But we must note again that Karl Marx said that in a society where we have classes of different people, the law depends on the moral code of the judges. The outlook of the moral value of the ruling class determine the law to maintain their hegemony. Another important case we may consider is that of the Speluncian explorers, a fictitious case created by Lon Fuller. In that case, a group of cave explorers who were trapped in a cave decided to eat one another as they were approaching starvation. When the men were later rescued, they were prosecuted for the murder of their colleague (Whitmore). The trial court held them guilty and sentenced them to death by hanging. On appeal, the Supreme Court was evenly divided and the sentence of the trial court was affirmed. It should be noted that the law concerned made no provision for clemency to be granted these accused persons; the offence was punishable by death only. Let’s even assume that some form of clemency will be extended to these persons, the question is can this be done without impairing either the letter or spirit of the law and without encouraging the disregard of the law? = we do not think so. A judge must therefore apply the law as opposed to his own conceptions of morality; the letter and spirit of the law must be followed. Ultimately, we must state that the fact that the five men had an agreement which Whitmore initiated does not mean that the illegality and immorality of the act should be condoned. This is expressed by the maxims ex turpi causa non oritur actio (an action does not arise from a base cause) and ex dolo malo non oritur actio (no court will lend its aid to a man who founds his action upon an immoral or illegal act). The case of R v Dudley & Stephens is also instructive in this regard. The court in this case held that there is no general principle of law which entitles a man to take the life of an innocent person in order to preserve his own life. It is thus abundantly clear from the authorities above that the criminal law would concede no exemption on the ground of necessity for such an act of homicide.
This leads us to the HART-FULLER debate. This debate is one of the most important debates between natural law and legal positivism. The main issue of their debate could be roughly summarized as the moral nature of law: Fuller proposes that the authority of law (partially) derives from its consistency with morality while Hart suggest the other way that law doesn’t need to be consistent with morality to establish its authority.
Professor Hart defends the positivist school of jurisprudence from many of the criticisms which have been leveled against its insistence on distinguishing the law from what it is and what it ought to be. He argues that the question of what is law must be separated from the question of whether it is moral or just. In essence, Hart insists that the law is the law and that it remains law even though it might not meet the demands of external moral criteria. Hart argued that the courts have no alternative but to apply a properly enacted statute however evil its aims may be. On the other hand, Professor Fuller argues that the law must possess certain characteristics if it is to be classified correctly as ‘law’; the most important characteristic being inner morality which must command respect. Where there is no such morality in an enactment there is no law.
The breakdown of traditional order and morality in Germany during the Nazi era presents a good example for both scholars. Their views have had a bearing on recent German judicial decisions dealing with the alleged invalidity of certain Nazi legal and administrative enactments. One of these court cases has been chosen by Hart and Fuller as a peg on which to hang their arguments. In 1944, defendant, desiring to get rid of her husband, reported to the authority derogatory remarks he made about Hitler while home on leave from the German army. Defendant wife having testified against him, the husband was sentenced to death by a military tribunal apparently pursuant to statutes making it illegal to assert or repeat any statements inimical to the welfare of the Third Reich…However, after serving some time in prison, the husband was sent to the front. Following the defeat of the Nazi regime, the wife, as well as the judge who sentenced her husband, was indicted for the unlawful deprivation of another’s liberty. On appeal to a German court of last resort, it held that the wife was guilty because she utilised out of free choice a Nazi law which is contrary to the sound conscience and sense of justice of all decent human beings to bring about the death or imprisonment of her husband. Hart condemned the court’s decision noting that it favoured natural law doctrine and as opposed to positivism. He was of the view that the court should have applied the law under the Nazi regime disregarding its evils. Fuller insists that the court’s attitude was absolutely correct and that Hart was in error. He maintains that law and morality cannot be so neatly distinguished and that the post-war courts were entitled to hold Nazi rules not to be law. To call the Nazi system ‘legal’ and to call its rules laws was a false description of what they were. They were instruments of an arbitrary and tyrannical regime. In short, Fuller seemed to be saying that an unjust law is no law at all.
Let us consider the Wolfenden committee report on homosexuality and prostitution in England. According to the report, the function of the criminal law is to preserve public order and decency, to protect the citizens from what is offensive or injurious and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence. It is however not the business of the law, according to the committee, to take positions on matters of morals or to intervene in the private lives of citizens. Guided by this philosophy, the committee recommended that prostitution and homosexual acts between consenting adults in private should cease to be illegal. According to the committee, as long as bystanders do not have to suffer by seeing the vice in operation, the law has completed its role. In essence, the state has no business in what a man does in his bedroom.
Lord Devlin has criticised the Wolfenden report on the ground that it assumed that there was a sphere of private morality which was altogether outside the purview of the criminal law. To Devlin, no private sphere of morality exists. But some positivists like HLA Hart do not agree with Devlin.
With regard to law, morals and religion in Nigeria, it is pertinent to point out the colonial heritage of legal pluralism which means there exists two legal systems (Received English law and Customary Law) in the country. The moral principles we have imbibed in this country comprises Nigerian legislation and Received English Law, the latter being a huge influence on our morality.
It is beyond doubt that our colonial masters used their own law to consolidate superiority over Nigerian law which is basically our customary law (see Prof Amaechi Uchegbu’s article: THE REPUGNANCE OF THE REPUGNANCY POLICY where the learned author queried the validity and enforceability of the repugnancy doctrine). He argued that the traditional legal order suffered a frontal attack and humiliation in the hands of muslim and British invaders. In the case of the former, the object of their invasion was religious, that is, the spread of Islam while that of the British was largely economic. Both invaders carried with them not only their legal order which confronted the traditional customary law but their entire culture which they successfully imposed on the conquered indigenes though not without resistance.
One clear example of the above is the act of striking down customary laws which did not meet Britain’s standard (see S. 16 Evidence Act 2011 and the High Court Laws of the respective states). The question is why was it necessary at all to provide for this repugnancy clause? This writer believes it is because our colonial masters felt they were superior to us in all ramifications. The use of words like ‘barbarous’, ‘uncivilized’, ‘savage’, ‘primitive’ in describing our customary laws shows the gap they saw between the two legal systems.
Customary law would be unenforceable if it collides with natural justice, equity and good conscience. The policy as applied to Nigeria was not to abolish customary law entirely but to refine its objects. The right to do so is derived from conquest. It was simply an imposition by one legal order on the other. The question then is what the phrase ‘natural justice, equity and good conscience’ means or is it in no way different from what obtains under English law? Perhaps the attitude of the courts through a few cases will help us deduce the meaning of the aforesaid phrase.
In EDET v ESSIEN, the wife of Mr. A who had got married to him under native law and custom left him to live with Mr. B. The wife had two children for Mr. B from this illicit union. Mr. A consequently claimed that in accordance with customary law the two children belonged to him. The Court held that it was contrary to natural justice, equity and good conscience to allow Mr. A to claim the children of Mr. B just because Mr. A had been deprived of his wife and without a refund of the bride price he paid on her. The difficulty of an ‘alien judge’, that is, a judge not from the community of dispute settlement, is to understand the rationale for the customs of a people. Viewed from outside the custom, some of the repugnancy decisions would make sense to the judge but perhaps nonsense to the community whose social relations are totally immersed in culture. But I ask, is there really any justification for the existence of these barbaric customary laws? Well, maybe; just maybe!
In DAWODU v DANMOLE, the trial court in this case had held the Idi-igi (per stirpes) system of inheritance repugnant. In the court’s view, the Ori-ojori (per capita) mode of inheritance was preferable since it was more equitable and kept with modern development. On appeal, the Privy Council reversed the decision of the lower court grounding its reasoning on the fact the the Idi-igi mode could be properly understood outside the polygamous order of marriage which characterized the Yoruba custom. It’s the view of the legal author that the repugnancy policy is a fallacy and should not have applied to our customary law. See also Salako v Salako.
Finally, on the issue of morality being culture-specific and geography-bound, we shall consider a Nigerian case in this regard. In Alhaji Mohamed v Knott, a Nigerian Muslim aged 26 married a girl aged 13 in Nigeria. The couple came to England and cohabited there until the girl was taken into custody on the grounds that she was ‘exposed to moral danger’ under the Children and Young Persons Act 1963 (UK). The Divisional Court ordered that she be released since the marriage, valid by Nigerian law, was recognized in England. It could not be said that the girl was exposed to moral danger merely because she lived with her husband. The case reiterates the point that the notion of morality under Nigerian law is not the same as it is in England.

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