LAW AND MORALITY
CONTENTS:
Introduction Objectives Main Content
- Law and Justice
- Types of Morality; and
- Custom and Law;
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Reading
INTRODUCTION
The positivists posited that nothing is law except the one laid by the sovereign or his agents. The law and morality, according to them, are mutually independent and positive law does not derive its validity from moral values. However, in discussing the validity and efficacy of law in the human society, one vital question that flows naturally from the whole gamut of the discussion is whether there can be laws that are not built or constructed, without the support or sinews of sound moral judgments. The positivists do not believe that ethics, religious or moral rules are law unless they are enacted into law. Therefore, since the ultimate aim of law is to do good, there is no doubt that law has a commonality of interest with morality which is basically concerned with good and bad in society.
OBJECTIVES
In this unit, you are expected to know the following:-
- The difference between morality and
- Custom and law
- That morality is a very vital constituent of law.
- That what is morally right may be legally wrong and vice versa.
MAIN CONTENT
The difference between Morality and Law:
In some way, law and morality may appear to mean the same thing and the two are often confused. The resemblance derives mainly from the imperative nature of both and the language employed. For instance, “Thou shall” or Thou shall not”.
In some cases, the law appears to be behind morality while the converse is the case in others. For instance, while adultery is a moral question in some part of Nigeria, it is not an offence under the law. This shows that the level of moral approach is not strong enough to make it an offence. On the other hand, the law may go beyond the prevailing level of morality in the society. In such cases, the incidence of breach is often high. The laws against abortion or obscenity are glaring examples of this.
Morality, no doubt, is a very vital constituent of law. Although the ultimate sanction of law is force. It can control only external acts, but it cannot enjoin or control a spirit/conscience.
Morality appeals to a person’s conscience and sense of right and wrong, of what is good and what is evil. As a principle of human conduct, conscience becomes a self- legislating mechanism, enabling a person to choose according to the consciousness of his own liberty.
Therefore, one distinguishing factor is the availability of sanction. Law, unlike morals, almost always provides for definite sanction while the breach of a moral code may only incur societal disapproval or spiritual disapprobation.
Similarities of Law and Morality
Basic principle of morality is also the basic principle of law which means that good must be done and evil must be avoided. According to Prof. Hart with regard to the place of morality in law, he threw more light in the following words:
“The law of every modern state shows at a thousand point, the influence of both the accepted social morality and wider moral ideals. These influences enter the law either abruptly and avowedly through legislation or silently and piecemeal through the judicial process. In some systems as in the United States the ultimate criteria of legal validity explicit incorporate principles of Justice on substantive moral values. The further ways in which law mirrors morality are myriad, and still insufficiently studied, statutes may be a mere legal shall and demand by their express terms to be filled out with the aid of moral principles”.
Although a rule of law does not become illegal or inoperative merely because it is against the moral code of a society, morality often gives content to law, as opposed to the claims of the positivists; many laws are therefore predicated or based on moral values.
Thus, once upon a time, there was a running controversy over the extent to which law should be employed to deal with questions of morality. The argument has been advanced that a particular conduct should not be made punishable by law, merely because the wider society considers it to be immoral, unless the need arises to prevent harm to others. But the difficulty is in the determination of where to draw the line between private harm and societal or public harm.
SELF-ASSESSMENT EXERCISE 3.1
What are the distinguishing features between law and Morality?
Law Morality and Justice
It is important to note that the appeal to a person’s conscience in respect to what is good or bad is done within the spectrum of what the community regards as good or bad or evil. It is upon this predication or base that the talks about ideal morality and positive morality emerged. Thus, morality can be viewed from two separate angles.
Ideal Morality dwells on morality in the context of the individual as a person while positive morality discusses morality in relation to the individual as a member of a community.
As part and parcel of the community, the individual is expected to abide by the approved norms of behaviour in the community. In this regard, his sense of what is right or wrong is essentially controlled by what the community defines as good or bad, as the case may be.
Positive morality, therefore, refers to a body of rules supported by the prevalent opinion of the community to which the individual belongs at any given time.
Law on the other hand, is a refection of a society’s morality. But law and morality are not one and the same thing as what is morality right, may be legally wrong and vice versa.
Justice is fairness, equity and the right application of the law. Justice is what is what the law supposed to produce. Though, law is synonymous with justice, yet law is not always just, such as, when a rigid application of law results in injustice. According to Black Stone, “Justice is a reservoir from where the concept of right, duty and equality evolves”. While, Salmond, further opined that, “though every man wants others to be righteous and just towards him, he himself being selfish by nature may not be reciprocal in responding justly.” This is why some kind of external forces are necessary for maintaining an orderly society. Hence, without justice, an orderly society is unthinkable.
Therefore, whilst a person desires absolute freedom to do and undo whatever he likes, the state has had to limit such freedom in the overall interest of everyone and society in general. Thus, law develops society and society develops the law by reforming it.
SELF-ASSESSMENT EXERCISE 3.2
Explain the two angles of morality.
Custom and Law
Customs, like law, also have normative values and command obedience from members of the society. But in spite of their effectiveness, they are easily distinguishable from laws so properly called.
Law, unlike custom, attracts physical coercion, is more regular and consistent, and invokes a greater authority.
A custom does not become legally binding unless it receives the force of law. However, with the growth of society and increased sophistication, the relevance of bare customs as sustaining norms has gradually declined and easily yields to any law on the same subject. For example, old customs have been given the force of law for the sake of commercial convenience. Such accepted customs are to be respected as laws only because they are pronounced to be so by the courts.
SELF-ASSESSMENT EXERCISE 3.3
Distinguish between custom and Law.
CONCLUSION
In this unit we have differentiated law from morality, discussed their similarities, different/types of morality. We also differentiated law from custom. Thus, we could conclude by opining that in as much as law has the overriding character of force or coercion the philosophy of thought of taking cognizance of established thoughts, beliefs, customs, habits and values of a people becomes a significant factor in the process of establishing a conducive environment that would promote obedience to the laws of the land.
SUMMARY
It is important to stress that the concept of what is good or evil varies from society to society, and from time to time. On the other hand, what is morally good today may be morally bad tomorrow, and vice-versa, because, while the few basic principles of morals do not change, others do. Countless human actions are neither good nor bad in themselves but get their goodness badness from circumstances of time, place, object and intent.
TUTOR-MARKED ASSIGNMENT
Compare and contrast between law and morality.
REFERENCES/FURTHER READING
Dennis Lloyd, (1979) – The Idea of Law, England, Penguin Books.
John Ohireime Asein, (1998) – Introduction to Nigerian Legal System, Ibadan, Sam Bookman Publishers.
Nnayelugo Okor and Aloysius-Michael Okolie (2004) – Law, Politics and Mass Media in Nigeria, Nsukka, Prize Publishers Ltd
Okonkwo, C. O. ed., (1980) – Introduction to Nigerian Law, London, Sweet and Maxwell.
Sanni, A. O. ed., (1999) – Introduction to Nigerian Legal Method, Ile-Ife, Kuntel Publishing House.