The Relationship between Law and Morals is illustrated below
‘y’ ‘z’
(Law) ‘x’ (Morals)
These are two intersecting circles – one circle represents ‘Law’ and the other ‘Morals’. Both circles are not congruent. This implies that the province of law does not correspond with that of morals. The circles do overlap. This implies that Law and morals overlap – breaking both provinces into:
x – Area of congruity.
y – Area that is law devoid of morals and vice versa.
z – Areas of morality unknown to law
Let us look at the sub-sector in greater detail.
X – Area Congruity
This is the area common to both spheres, where Law and Morals coincide or are congruent. Examples are conduct that are both criminal and immoral e.g. murder, rape, robbery, stealing. In each of these conduct, there is identity between law and morals.
Y – Area Of Law Simpliciter
The area in the ‘law’ circle which does not overlap with the ‘morals’
circle depicts behaviour generally regarded as criminal but not immoral.
Examples are parking offences or driving at excessive speed limit in order to save life.
Z – Area of Morality Simpliciter
The area in the ‘Morals’ circle which does not overlap the ‘Law’ circle represents conduct that are immoral, but not criminal. Examples are lying, gluttony.
Another division of behaviour or conduct is into:
(i) offences mala in se.
These are conducts that offend both religious and moral susceptibilities and Law e.g. Armed robbery
(ii) offences mala prohibita.
These are conducts that are not offensive to morality e.g. Parking offences.There are also distinctions between strict liability
offences and mens rea offences. Strict liability crimes remain proscriptions whether or not the behaviour is offensive to morality. There is presumption against strict liability crimes so
that such offences are created by the clearest intentions.
Sanction
Breach to law and breach of moral norms attract distinctive sanction or punishment. Thou shall not kill is a religious norm. Whoever kills commits sin and may suffer the sanction of hell. Fornication is immoral and whoever commits it runs the risk of being physically ostracized.
Stealing is a legal wrong for which the thief may be liable to a physical sanction of imprisonment or other penalty prescribed by law and within the limit so stipulated also by law. The Courts in Nigeria are Courts of law.
3.1.2 Relativity of Morality
This has to be illustrated through decided cases. In Mohammed v. Knott (1969), M aged 26, Nigerian Muslim, married a girl, Nigerian, aged 13 according to Muslim rites. The couple went to England where they cohabited. Following a complaint lodged by their neighbours, the police took the girl into custody, and brought her before the Juvenile Court alleging that she, being 13 was exposed to moral danger and therefore was in need of good care and guidance. The Court found for the police.
It held that exposure to moral danger had been proved and that child marriage was repugnant to any decent minded English man.
But the personal law of both parties in Mohammed v. Knott, recognizes the type of marriage in question; and reasonable person wearing the Nigerian pair of spectacle would not be heard to contend that a spouse is exposed to moral danger in situations where she was only performing her wifely duties.
Under our law, stealing is said to occur where a persons, without the consent of the owner, fraudulently and without a claim of right made in good faith, TAKES and CARRIES away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof.
SELF ASSESSMENT EXERCISE
Think of the following three situations, where:
i. a 30 year old man steals from old and feeble woman.
ii. a middle aged man steals from a complete stranger almost of the same age.
iii. one spouse of Christian marriage steals from the other spouse while their marriage subsists.
iv. one spouse of a traditional marriage steals from the other while their marriage subsists.
How do you describe the morality of each theft or stealing
v. ………
………...
ii. ………
………
iii. ……….
……….
iv. ……….
……….
Certain inferences may now be drawn from what we have said so far concerning law and morals:
(i) Both law and morals impose certain standards of conduct.
Absolute freedom includes freedom to steal, kill, rape etc. and if society is to survive some minimal standard of behaviour must be imposed. The Nigerian legal system tries to set up a high but not too high attainable standard like most other jurisdictions all over the world.
(ii) Law and Morals support, reinforce and complement each other.
Fears of detection, prosecution and punishment by law deter people from crimes and criminality. People also abstain from crime not merely out of fear of law but purely on moral grounds.
Sometimes, both fear of law and morality play on each on other to induce conformity.
(iii) Both law and morals presuppose the existence of each other. The legal system identifies and defines the concepts of ownership,
and possession in stealing. The Moral Code helps man to distinguish wrong from right conduct.
(iv) Law and morals are closely related, being mutually concerned with such elements as:
a. rights, duties, obligations, proscriptions
b. rules or norms or body of rules or norms for human conduct.
It has been argued that there is no distinction between law and morals.
Post War Nazi Germany, Apartheid of South Africa and Colour Bar in the United States of America would tend to support this view. There is some force also in the contention that law and morals are separable.
Both at times merge and at other times diverge. It has been argued that immoral law is no law (see Blackstone and Austin’s definition of law).
But it would appear that morality is a validity criterion. It is important therefore that a clear distinction has to be made in order to avoid confusion.
Positivists, like jurists, have maintained that law is not moral. Law is national or rather universal. Morals or morality is relative, sectional, binds only those who adhere to it and varies by reason of
(i) religion (e.g. as between Muslims and Christians or even among different groups of Moslems and Christians).
(ii) Psychology (e.g. twins have different psychological make up) (iii) Status e.g. the poor and the rich, ethnicity, persons who live in
the Government Residential Areas (urban) and those in Tudun Wada. Sabo gari (Rural) areas.
Environment dictates morality.
4.0 CONCLUSION
You have begun to see law and other related concepts, beginning with morals. The relationship between law and morals is ever topical and one is glad that you have followed the trend, noting their areas of
convergence and divergence and in particular the relativity of morality.
You have enough stuff to assist you in taking your position in the continuum.
5.0 SUMMARY
Man is a moral being endowed with concepts of what is right or wrong.
Both concepts of right and wrong are not consensual but are harmonious and may be influenced by a number of factors – psychological, social, environmental, religious, ethnicity, urbanization. There is absence of homogeneity in morals. It is apt to conclude in the words of
Westermarch, ethical relativist:
Philosophers and theorists of the law would do better service to
humanity if they tried to persuade people not only that their moral ideas
require improvement, but that their laws, so far as possible, ought to come up to the improved standards, than they do by wasting their
ingenuity in sophisms about the sovereignty of law and its independence of the realm of justice”.
But there appears to be a bedrock of common morality in the society – a common denominator. The positive law comes into being through moral law which requires men to behave in certain ways for the sake of
achieving a more stable and tolerable human existence. Before law came, there was already in existence a moral order and the purpose of the legal system was to implement and enforce that moral order.
This is an introduction into the age long controversy between law and religion, law and morals or predominance of one over the other. In the next lesson, we shall undertake an in-depth analysis of theoretical or philosophical basis of each side of the divide.
6.0 TUTOR MARKED ASSIGNMENT
There is no distinction between Law, Religion and Morals. Discuss 7.0 REFERENCES/FURTHER READINGS
Salmon, J: Jurisprudence Pound, R.:
Philosophy of Law Hart, H. L. A.: The Concept of Law
MODULE 3
Unit 1 Laws and Morals cont’d Unit 2 Sources of Law
Unit 3 Meaning of Statute
Unit 4 Statutes of General Application Unit 5 Received Law
UNIT 1 LAW AND MORALS CONT’D