RELATION OF LAW TO JUSTICE, MORALITY & RELIGION
CONTENTS
1.0 Introduction
2.0 Objectives
Main Body
Definitions of justice, morality and religion
Relation of law to justice
Relation of law to religion
Relation of law to morality
How non-law elements affect law’s viability
4.0 Conclusion
5.0 Summary
6.0 Tutor-Marked Assignment (2)
7.0 References/Further Readings
INTRODUCTION
The existing relationship between law on the one hand, and morality, justice and religion, on the other, is the concern of this unit. It will also examine how other non- law elements affect the efficiency of law.
OBJECTIVE
This topic deals with the importance of morality, religion and justice to the notion of law and the influence these other elements have on its efficiency. Further, a study is carried out as to how these elements can be harnessed when legislation is drafted. We also examine the institutional adequacy of these elements in relation to law.
MAIN BODY
- Definitions of justice, morality and religion
You are to look at the various available definitions of justice, morality and religion. This is only to aid your understanding of the relationship between each of these concepts and law. Justice, according to John Rawls, is ‘the first virtue of social institutions, as truth is of systems of thought.’ Thus, justice can be thought of as distinct and as more fundamental than benevolence, charity, mercy, generosity or compassion. It has traditionally been associated with concepts of fate, reincarnation or Divine Providence, i.e., with a life in accordance with the cosmic plan. Of particular importance to you as students is that justice is a concept that means different things to different people. To an accused person, justice will mean that system which set him free, regardless of how immoral this may sound. To the prosecution, justice is attained by the securing of conviction against the accused, while to the society, justice is done when the right person goes to jail and the right person is set free.
Morality can be used to refer to a code of conduct that, given specified conditions, will be put forward by all rational persons. Understand that morality can be used in its descriptive or normative sense. In its descriptive sense, morality refers to personal or cultural values, codes of conducts or social mores that distinguish between right and wrong in the human society. In the normative sense, morality refers to a code of conduct that applies to all who can understand it and can govern their behaviours by it. In the normative sense, morality should never be overridden, that is, no one should ever violate a moral prohibition or requirement for non-moral considerations.
Religion is a cultural system that creates powerful and long-lasting meaning by establishing symbols that relate humanity to beliefs and values. Note that the word ‘religion’ is at times used interchangeably with ‘faith’ or ‘belief system’, but religion differs from private belief in that it has a public aspect. Most religions have organised behaviours, including clerical hierarchies, a definition of what constitutes adherence or membership, congregation or laity, regular meetings or gathering for the purposes of veneration of a deity or for prayer, holy places (natural or artificial), and/or scriptures. The practice of a religion may also include sermons, commemoration of the activities of a god or gods, sacrifices, festivals, feasts, trance, initiations, funerary services, matrimonial services, meditation, music, art, dance, public service, or other aspects of human culture.
Through these definitions and others you will come by, you will discover that there is a close nexus between religion, justice and morality, but each of the three concepts is closer to law than the other as you will soon discover.
Self-Assessment Exercise (SAE) 1
Attempt a working definition of justice, morality and religion.
Relation of law to Justice
Your focus here is to grapple with the relationship between law and justice. As a point of start you should concern yourselves with the four aspects of justice. First, there is achievement of justice in the distribution of advantages and disadvantages in society.
Secondly, there is achievement of justice by curbing the abuse of power and liberty.
Thirdly, there is achievement of justice in deciding disputes, which is the aspect closely related to the work of lawyers. And, finally, there is achievement of justice in adapting to change. The major relationship between law and justice is that law makes all these outlined aspects possible.
The relationships are several but few will be referred to herein. A given law is itself either just or unjust according to whether or not it complies with those objective principles of justice. But one may be pressed to ask: what will happen where a judge has to apply an unjust law? Will that make his judgment unjust? The issue here is where the judge considers the law to be unjust from its face. Justice, we need know, is as defined by legislation/law. Thus, where the law is clear and certain that a particular consequence should follow some behaviour, once that is done, justice has been achieved in that case.
Now, going back to our judge, he will be doing injustice if he rules contrary to what the law says. Besides, his decision is very likely to be upturned on appeal by higher courts. Thus, the law defines justice.
Salmon believes that law is an instrument of the society and the object of the law is to achieve justice. The goal of the law is the achievement of justice. According to Acquinas and Augustine, unjust law is no law; whilst Salmon believes that law is those principles applied by the state in the administration of justice. Justice can be gleaned from the wider and more restricted sense. In the wider sense, an unjust law is no law, while in the narrower sense, we see justice as one area of morality. According to Salmon, there are two different levels of justice – distributive justice which ensures a fair division of social amenities, benefits and burdens among the members of the community. For example, it is a principle of democratic system that a citizen is entitled a right to vote and no one should have more than one vote. Also, in terms of taxation, the burden of taxation should be fairly distributed among the citizens.
The second level of justice is the corrective justice. The corrective justice intervenes at a point where the distributive justice fails to achieve its aim. If X takes possession of the land belonging to P, corrective justice would intervene to restore X land to it. In other words, distributive justice serves to secure benefits, opportunities and burdens while corrective justice is to redress problems created by distributive justice.
Distributive justice are usually contained in constitutions and codes while courts of law apply the corrective justice. Again, law strives to strike a balance between competing interests in the society. It is for this reason that Roscoe Pound regarded law as an instrument of social engineering, the function of which is to maximize the interest of community and its members, and to promote smooth running of the society.
You are expected to read more on this relationship in the texts provided under references.
You are expected to read more on this relationship in the texts provided under references.
Self-Assessment Exercise (SAE) 2
Is there any relationship between law and justice?
Relation of law to religion
The relations between law and religion have adopted an almost infinite variety of forms through the very long history of these two forms of human activities.
First of such relationship is that law has been of a tremendous help in fostering religious freedom/unity. The law prepares the ground by prescribing some acceptable modes of worship. Since it is not possible for the whole world to be of one religion, there is need for law to perform this task. Without such regulations, some barbaric religious practice such as sacrificing of human beings or killing of human beings may be permissible.
Second, in principle it is not difficult to draw a conceptual distinction between religious precepts and moral norms. Examples of the former are the duty of the Catholic to attend Mass on Sundays and the duty of the Moslem not to drink alcohol. Examples of the latter are the duties not to steal and not to kill the innocent. While religious precepts are binding only on the adherents of the religious body which imposes them, moral norms or principles, if they are sound, are valid for all men irrespective of their religion.
The above distinction is important because while the imposition of a purely religious precept on people who are not members of a religious body is intolerable and is likely to destroy the basis for the religious coexistence of the adherents of different religions, basing the law on moral norms which are adopted by virtue of their intrinsic appropriateness in the regulation of common life is not objectionable in itself.
Even though it is acceptable for the laws of the society to reflect moral ideas which, at least in principle, can be defended without invoking religiously revealed doctrines, a problem may arise when laws, which may have been enacted for purely secular reasons and that, in the view of the legislator or even of the great majority of the population, are unobjectionable from a moral point of view, are vigorously objected to on religious grounds by the members of some religious group. Thus, law must be conversant with some religious precepts which if legislated against may cause national upheaval.
Self-Assessment Exercise (SAE) 3
The law plays a pivotal role in ensuring freedom of religion. Discuss.
Relation of law to morality
The relations between law and morality are the most obvious and prominent. There has always been a debate on whether law should legislate morality and views are varied on what is likely to be the consequences of legislating some people’s morality as morality of everybody. Thus, issues of homosexuality, gay marriage, lesbianism, etc have attracted various comments especially as they relates to the reasons why the law cannot be used as a weapon to stop such practices.
There is no doubt about it: there is a nexus between law and morality. The laws prohibiting stealing and murder, among several others, are hinged on morality. It is therefore morally wrong to steal just as it is morally wrong to kill. But we need to be aware of the fact that the relations between law and morality are not as always clear-cut as these examples. For instance, while it is legally and morally wrong to kill, it is not legally wrong to watch a person drown in a swimming pool, even though the same act may be morally wrong. It is also not legally wrong to refuse to help an accident victim, even though this also will be morally wrong.
There is also the argument that there should be a limit to the extent the law will interfere in the private lives of the citizens. Cases made against criminalising homosexuality, lesbianism, gay marriage and prostitution are based on this ground. It has been argued that whatever people in this category do are done in the privacy of their rooms; hence, since they do not constitute threat to the people around them or the public at large, it will be going too far for the law to poke-nose into their private lives. But, what about where a homosexual decided to practise the act on a young boy?Or, what about where he influences such a boy to be his partner in such a practice?
The normative structure of the language of the law reflects the use of the words “ought”, obligation and duty. A person asserting a moral duty is usually obliged to proffer reasons for asserting a moral duty, while legal obligation is more in the nature of a command. A legal obligation does not depend on the reason but on authority.
There is equally distinctions of substance between morals and law. The two do not altogether coincide and that there is a field of positive law that is not deducible from any pre-existing system of natural law. One of the tenets of positivists is that positive law is quite distinct from, and its validity in no way dependent upon morals. However, a measure of coincidence between them may be essential to the working of human society.
Kant believes that laws prescribe for external conduct whereas morals prescribe internal conduct. This means that morals alone are concerned with subjective factors, such as motive. Law on the other hand, is concerned with the external manifestations of motive. Many lawyers believe that the characteristic element of law is sanctions which differentiates law from morals. Nevertheless, morals are not without sanctions such as incurring societal condemnation or the condemnation of peers. Law, however, has a regularized and specific sanctions.
The relations between law and morality, like other aspects, are in exhaustive. You are therefore expected to read up others.
Self-Assessment Exercise (SAE) 4
Does Law have any relation to morality?
How non-law elements affect law’s viability
The viability of law is often affected by non-law elements. You should look at the need for the law making bodies to ensure that the laws they are churning out are in compliance with the practice and ways of life of the people who are expected to obey the law. For instance, where a law clashes with ideas which are vigorously held in the community, there is a strong likelihood that the law will be ignored or even positively boycotted. There is therefore a need for the law to take these ideas into consideration. In Nigeria for instance, the system has been abolished by law, but the practice still continues since the law is not in line with the publicly held belief in that part of the country. The law to regulate bride price payable on brides( in some parts of the country has also suffered the same fate. Where these non-law elements are not taken into consideration, there is a possibility that the law will be weakened in the process and will remain unenforced.
Self-Assessment Exercise
To what extent do non-law elements affect the viability of law?
CONCLUSION
So far, we have examined the relations of law to justice, religion and morality, and in the course of doing this, we have been able to identify these relationships. Our study in this unit has made us to appreciate the interrelationship existing among these various concepts.
SUMMARY
In this unit, we have studied the following:
Definition of justice, morality and religion Relations of law to justice
Relations of law to religion Relations of law to morality
How non-law elements affect law’s viability
TUTOR-MARKED ASSIGNMENT (2)
While it is not legally wrong to embark on acts of homosexuality, it is morally wrong to so(do. Discuss this assertion with particular reference to the relationship between law and (morality.
REFERENCES
Dias, R.W.M., Jurisprudence, 4 th ed. (Butterworth & Co. (Publishers) Ltd, Boston) pp 1 – 28
Elegido, J.M., Jurisprudence, Spectrum Law Publishing, Ibadan, 1994, 182 – 195 FunsoAdaramola, Basic Jurisprudence, 3 rd ed., Raymond Kunz Communication, Lagos, 2004, 85 – 105
Hon. Justice KayodeEso, Law, Religion and Secular State, MIJ Publishers, Lagos, 1990 at 291
Lord Denning, Landmarks in the Law, Butterworth, London, 1984 at 351 – 365