Evidently, both law and morality serve to channel our behaviour. Law accomplishes this primarily through the threat of sanctions if we disobey legal rules.
Morality too involves incentives: bad acts result in guilt and disapprobation, and good acts will result in virtuous feelings and praise.
These two very different avenues of effects on our actions are examined in this essay from a subservient position.
The observed pattern of use of morality and of law is discussed and it is proposed that the observed patterns are in rough alignment with one another.
This essay is dissevered into: introduction, conceptual clarification, law and morality, conclusion and references.
Pecorino defines morality as the rules of right of conduct concerning matters of greater importance. Violation of such can bring disturbance to individual conscience and social sanctions.
In short, we can say morality is the principal dealing or relating with or to accepted standards of behavior. Better still, it is concerned with the distinction between good and evil or right and wrong; right or good conduct.
Insofar as morality has a short definition, we cannot say same of law. As Professor Okuniga once said, there is no definition of law, and that no one is ever defining law. However, we can only try to clarify this term using different schools.
Natural Law holds that law and morality are connected. Law is not simply what is enacted in statutes and if legislation is not moral, then it is not law and has no authority.
In order for man-made laws to be valid, it must accord with the higher law. St. Thomas Aquinas calls such law (without moral contents) a perversion of law.
Natural law theory holds that there is an essential connection between law and morality.
This view is frequently summarized with the maxim: “an unjust law is not a true law.” It follows that we need not obey it.
Positivism emphasizes the separation of law from morality. According to legal positivists, law is man-made, or ‘posited’ by the legislature. Where Natural Law theorists may say that if a law is not moral, there is no obligation to obey it, the positivists hold that, until the enacted law is changed, it remains law, and should be obeyed.
The Realists hold a view that we should understand the law as it is practiced in the courts, law offices, and law enforcement agencies, rather than as it is set forth in statutes or held in treaties. For legal realists such as Oliver Wendell Holmes, who wrote “The Common Law” in 1923, if the law were merely a system of rules, we would not need lawyers conducting adversarial proceedings, because judges could just apply the rules. In fact, judges have discretion with which they can decide a case in a number of ways, and factors such as the judge’s temperament, social class, gender, or even political orientation may determine the outcome.
In the Utilitarian school, Jeremy Bentham (an English philosopher and jurist, born in 1748) proposed the utilitarian principle which means that the law should create “the greatest happiness of the greatest number.” Bentham had little time for natural law. He argued that a utilitarian view of the law is that the law should produce the best consequences.
Under Functionalism, they see the law as characterizing the values and principles of society and maintaining these values by securing compliance.
These are just few of the many schools. In summarizing, using Pecorino’s definition would be more appropriate since he said Law is “rules which are enforced by society. Violations may bring lose or reduction in freedom and possession.” Law is a system of rules established by authority.
SixthLawForm goes further to say that “if a custom or norm is assured of judicial backing, it is, for practical purposes, law. “ While “a statute that is neither obeyed nor enforced is empty law.”
The study of law has taxed the minds of practitioners and theorists alike for many centuries. Problems such as law as in legislation, law as in the common law, law as in the natural law, law as in equity, law as in custom, and today, law as a function of constitutional change and many more makes defining what law is as difficult as ever.
LAW AND MORALITY
Issues of law and morality have always been at ‘odds’ with each other. Many people argue that not everything that is illegal that is immoral, for example, driving over the speed limit. Also, not everything that is immoral that is illegal, for example, breaking a promise.
Morality is more personal to the individual; law must be universal to the society. Moral views can change over time. In 1934, it was implied in a film about Russia that Rasputin had raped a princess, Youssoupoff. In that same year, they saw it necessary to protect her reputation by going to the court (Youssoupoff V. MGM Pictures  CA). The question is will she need to do same today?
In the USA, opium was used by the middle class and thought not to be morally wrong, but when it was criminalized by the Harrison Act of 1914, attitudes changed when the hardened users were perceived as low-life, it then was morally unacceptable.
Society’s laws and ideology tell us that killing, raping, stealing, are wrong. But then, there may be circumstances where it is justified e.g. aborting a child when delivery would lead to an absurd state, or killing for self-defence.
SixthFormLaw provides that morality is composed of normative rules which set out what a person should do, or what s/he should restrain from doing. The emphasis is on “should” because the individual is not compelled to abide by the normative rules; he or she simply ought to.
When it comes to law, it is made up of positive rules, which impose a legal obligation to do or restrain from doing something. If positive rules are breached, a sanction may be imposed. So we hear things like “Do not steal” and “Do not kill” because it is either a common law offence or in a section of an Act, let us say “Theft Act.” But under morality, these normative rules may appear as “Honour thy father and thy mother,” “Do not bear false witness,” and “Rescue a drowning child” and so on.
The law generally requires us to restrain from doing things, thereby, leaving us to do whatever it does not prohibit. It prohibits murder and theft but leaves us free to commit adultery and lie. Sometimes, it requires us to do some certain things, for example, to register a child’s birth or return our tax form. But it does not require us to put ourselves out to rescue a drowning child or even an old woman in a burning house (R V. Akanni), unless you own a duty to do so because of some kind of special relationship.
Some of the examples mentioned above come from biblical teachings, particularly the Ten Commandments. Theft and murder are a part of the Nigerian legal system, but how about the remaining eight?
Morality is about how one ought to live their life. Therefore, by living morally, one follows a code of conduct; one’s behaviour is good and conforms to certain standards. Law is clearly also a code of conduct.
Morality and law constrain what we do. For many people, the fact that an act is immoral is sufficient reason not to do it. For others, the threat of the law, the punishment is the reason for not doing it. Laws are enforced by punishments. Morals rely on individual conscience, social condemnation and the fear or respect of God.
The argument of those who believe there is a separation between law and morality, that not everything that is illegal is immoral, assumes that it is not always immoral to break a law.
Yet, some philosophers argue that breaking the law, even pointless laws, is morally wrong, and that in doing so, one acts badly. That the law presents itself as a seamless web and its subjects are not permitted to select which one they ought to obey.
A number of reasons have been offered as to why one is morally obliged to obey laws. SixthFormLaw brings one reason which appeals to the argument that if we allowed some violation of law, law breaking could spread, resulting to social disorder.
One problem with the above argument is that wide spread disobedience does occur in some cases, such as speeding, without leading to social unrest.
Another argument by SixthFormLaw Is that, we are morally obligated to obey laws because by consenting to government, we have promised that we will; violating a law is immoral in the way breaking a promise is. This argument is actually a dicey one and no reversal has been offered.
Because every law springs from a system of values and beliefs, every law is an instance of legislating morality.
Further, because a nation’s laws always exercise a pedagogical or teaching influence, law by necessity, exerts a shaping effect over the beliefs, character, and actions of the nation’s citizens, whether for good or ill.
Those who seek to separate morality from law are in pursuit of the impossible and the destructive. The question before us is never whether or not to legislate morality, but which moral system ought to be made legally binding. The assertion that we cannot legislate morality is just such a notion. No matter how often one hears you cannot legislate morals, the truth is you can legislate nothing else.
All laws, whether prescriptive or prohibitive, legislate morality. All laws, regardless of their content or their intent, arise from a system of values, from a belief that some things are right and others wrong, that some things are good and others bad, that some things are better and others worse.
In the formulation and enforcement of law, the question is never whether or not morality will be legislated, but which one. That question is fundamentally important because not all systems of morality are equal. Some are wise, others foolish.
For better or worse, every piece of legislation touches directly or indirectly on moral issues, or is based on moral judgements and evaluations concerning what it is we want or believe ought to be, what it is we want or believe we ought to produce and preserve.
When the Founding Fathers drafted our original constitution, they did on basis of competing belief systems, competing assertions of right and wrong, which they endeavoured to build into the constitution.
One or more of these belief systems permitted slavery, others did not. No side in the slavery debate at the constitutional convention argued that you could not legislate morality. They all recognized that notion as fiddle-faddle. They knew that indeed you could legislate morality, and they intended for that legislated morality to be theirs. This is not far from the “girl-child marriage” debate which held in the Senate during mid 2013 in Nigeria.
Also, no side in the struggle to legislate morality at our nation’s founding say to its opponent that trying to legislate morality was a breach of the wall of separation between church and mosque and the State. Morality, after all, is not a church, nor a mosque. They also must have laughed at the confusion of mind revealed in one who thought that separating the church or mosque from the State meant separating morality from law.
They wanted the nation to be moral. They wanted its laws to be just. But they did not want to give any one church or Islamic school, a national legal advantage over the other. They did not want the nation to be Presbyterian, Baptist, Roman Catholic, Sunni, or Shi’a (Dord, 1988), which is a far different issue from whether or not to have ethics-driven law. Under the constitution, the founders enshrined freedom of religion, not freedom from religion. In seeking to avoid a State-established church or mosque, they were not thereby establishing secularism or separating law from morality.
The very fact that the founders were creating a new constitution for their callow nation arose because they understood the actions of the colonial masters to be morally evil, and politically and economically unjust. They all knew quite well that morality belonged in politics, in fact that politics was simply morality applied to the public square, to the public’s business.
The founders sought to establish order. The order they sought was provided in part by the morality they intended to enshrine in law. They well knew from reading the ancient words of Aristotle, for example, that morality encoded in civil law helped to provide order, since law inescapably has a teaching function, or pedagogical effect. Law teaches the citizens what is right and good, and it punishes those who cannot or will not learn that lesson.
To make the point from a different angle, when we pass laws that require drivers to drive their vehicle at 10-15 km/hr, or even less, in school zones, we do so because we have a value system that rightly puts greater worth in human life than in vehicular speed. That valuation is a moral judgement. We propose and pass such laws because we think it wrong for drivers to recklessly jeopardize the lives of defenceless children, who lack the experience, foresight, and physical dexterity to keep themselves out of harm’s way on the streets. We punish drivers who do not do as the law requires. No one, in the face of such proposed legislation, says to the local authorities that those authorities have no right to impose their morality to others, even though that is precisely what such laws do. Much less does anyone seriously argue that to propose such value-laden law is an effort to tear down the wall of separation between church or mosque and the State.
Those objections are not raised in the case of low speed limits in school zones because all serious-minded citizens are in agreement with such laws. That these laws are moral-based or value-driven, creates no problem when people find the laws agreeable.
Rather, people tend to complain that laws are moral-based only when the law in question is based upon a moral valuation with which they disagree. To be consistent, those who object to moral-based laws would have to raise the same objection to all laws whatsoever, including the laws they themselves support. But they do not. They never do. When their own morals are encoded in law, they raise not even the faintest whimper of protest. Yet, when laws are passed that they dislike, they say almost nothing else. They seem to want a sword that will cut only others, never themselves. But any sword of objection sharp enough to cut Alhaji Ali is sharp enough to cut Madam Simbi as well, even though Simbi might not like it.
Legislating morality in other words, is not an option; it is a necessity, it is inevitable. Justice, equity, fairness – characteristics that all thoughtful citizens want from their government and on which they think government and its laws ought to be predicated — these are all moral categories. We outlawed slavery, theft, girl-child marriage, murder, fraud, rape, and so forth precisely because they are immoral and we wanted them stopped, or at least radically curtailed. We proposed, passed, and enforced these moral-based laws specifically towards that end, and in so doing we were right.
This should be made very clear. When it comes to prohibiting sexual harassment or sexual discrimination in the marketplace, feminists do not complain that the proposed legislation attempts to enshrine morality in the civil or penal code, even though it most definitely does. No serious feminist has ever sought to undo or to oppose such legislation because it was based upon a system of morals.
On the other hand, almost all, if not few of them, complain about legislating morality when it comes to outlawing abortion. They object to legislating morality only when the morality in question is one from which they dissent. When the law in question encodes a morality they support, their objection to moral-driven law disappears.
Legislating morality is not only ineluctable, it works. The proof that laws change behavior is widely known and not far to find. Almost no one in Nigeria today argues that slavery is moral, even though many of our great-grandparents thought it was, and as a result, owned other human beings as property.
What stands between today’s Nigeria and our slave-owning ancestors is moral-based law, specifically, the 1926 judgment from League of Nations, which outlawed slave trade, and helped radically to reshape the behavior and beliefs of those who grew up in their wake.
Similarly, in America, before prohibition, the average annual consumption of alcohol was nearly three gallons per person. After prohibition, that number fell to slightly less than one gallon. For the same reason, still in America, before the Supreme Court legalized abortion in 1973, about 100,000 abortions were performed in the US annually (Beckwith, 1993). After Roe V. Wade, however, the number raised to between 1.2 and 1.5 million a year (ibid).
In short, whether the laws in question are good or bad, law has an effect. The morality in the law, whatever it might be, tends to become the morality of the people. Law is always a tutor to morals and a shaper of national character, both for good and ill.
To digress, while legislating morality is inevitable, this work is not saying anything as silly as that all sins ought to be made crimes.
No government could effectively enforce laws against lustful thoughts, gluttony, or even “white lies,” albeit, such activities are sinful. If somehow the impossibility of enforcing such laws were overcome, the immediate result would not be less lust or less lies, for instance, but rather the overcrowding of penal institutions on an unimaginable scale.
Back to the point, when people object to legislating morality, they fail to recognize or to remember that their own understanding of morality is the impulse behind the laws they themselves propose and defend. It is also the impulse behind their opposition to other laws.
Yet, despite their inescapable dependence on their own moral code when designing, proposing, or opposing laws, they seek to deny that same moral impulse to others who wish to be heard, and have their own ideas taken seriously, who wish to have their own beliefs and values prevail. But people must not withhold from others in the public square what they wish to make use of themselves, for what is good for the goose is also good for the gander. If they would banish the moral basis of the laws proposed by their political opponents, they must banish it from their own as well. No one does that, and no one can.
Furthermore, if such people object to legislating morality, they could not, for that very reason, raise any effective moral objection to execution as a punishment for jaywalking, or decapitation for tax evasion or over-speeding. Their expostulation to such penal heinousness and to the laws that permit or require them is a moral objection, which they say ought to be blackballed from law.
The case of moral based law rests on a wider and more profound basis than the internal contradictions found in those who oppose legislating morality but are themselves unable to do as they insist (Bauman). Those who wish to banish ethical or moral consideration from legal affairs forget that civilizations are not founded on considerations of mere personal comfort and pleasure, or on science and technology, or even on self-expression and self-preservation, but on virtue – both public and private.
A good society depends for its preservation and well being on the character of its people, or the virtues that accompany, or perhaps, even define, good citizenship (ibid). Only on the foundation of courage, self control, and self-denial can a good society be found and continue to exist.
Such virtues, precisely, civil virtues, are not natural to us. As a sociologist once said, humans are born empty, thereby using the word – ‘tabula-rasa.’ We are not born into the word as good and competent citizens. The civic virtues and public responsibilities that define good citizenship must be acquired. They need to be learned. In that sense, we all enter this world unequipped by natural endowment for effective citizenship and self-government.
Every newly born generation needs to be civilized, or culturally house-broken, as it were. Those necessary but unnatural social skills and civic virtues require nurture and guidance for their growth – even for their existence (ibid).
Accordingly, moral education is a requirement for a sound and flourishing civil society. The laws of a nation help to provide for this moral nurture. This aids to character formation, by setting before the citizenry, examples of acceptable behaviour as their own. Law divorced from morality, law that poses as morally agnostic, cannot accomplish that task. Instead, morally voided law teaches the citizens that moral conduct is not necessary, either for their own happiness or the establishment and continuation of a good society and civil order.
One of the most distressing facts about America today is that they are experiencing intentional diminution of the conventional ideals and values, both in their culture generally and in their laws in particular. They are enduring what Gertrude Himmelfarb called the demoralization of society (Himmelfarb, 1995) in the wake of which politics and life have become impoverished, coarsened, and meretricious. This disaster is deliberately and foolishly inflicted on them for insisting, in the face of history and of clear thinking that they ought not to legislate morality. It is foolhardy to think that governing and government has no effect on the character of the nation and the persons who constitute it.
Bauman puts it that, government does not exist simply to make possible, whatever delights its citizens might happen to prefer at any given moment, whether privately or collectively. This is because some types of pleasure are better and more socially and morally suitable than others.
One of the purposes of government is to help educate the citizenry to pursue the higher pleasures rather than their lower or baser alternatives. Moral education, one of the functions of law, helps make those right-thinking and right-choosing citizens – and the culture they desire and seek to preserve – more likely.
Moreover, good societies depend on good and decent people. Such people do not simply happen. They are fostered, and one of the institutions that helps foster them best is well-informed, morally responsive law. Public institutions, like law and law enforcement, need to be concerned with the bridling or harnessing of egoistic motives and action. If they are not, something worse than chaos ensues, namely, cultural perversity and moral decay.
Law and morality share the function of regulator – morality for those with self-control and self-restraint, and law, for those without it.
Bauman illustrates that morality and law are like the two banks of a river, the river in this case being human action and the passions and desires that drive it. The banks of a river run roughly parallel. Where one turns left or right, the other tends to do the same. If they did not, the river would become a swamp – putrid, fetid, and stagnant.
Like the banks of a river, law and morality ought to move in roughly the same direction in order to curb the defects in human nature. If they do not, human action and human society quickly becomes a swamp, something that always occurs in the absence of public virtue and the enforceable law that upholds and nurtures it. To protect us from the moral and cultural swamp that threatens to engulf us, law must take its cue from morality.
Well-framed law helps us make the best use of our freedom by teaching us to avoid both excess and deficiency. Without the pedagogy of law, we are deprived of one of our best potentially wisest instructors and are vastly impoverished both individually and collectively.
Those who are frightened by moral pedagogy of law seem not to understand that human beings can be oppressed by an excess of freedom, which is another name for licentiousness.
Good law leaves room for liberty, not for license. Good law helps curb human excess, while morality helps curb the law. What a bridle is to the horse, law is to human nature. And what law is to human nature, morality is to law. Law helps regulate the people; morality helps regulate the law.
Morally sound law helps us to distinguish right from wrong, innocence from guilt, and justice from injustice. If the law from which we learn is not rooted in true morality, what we learn is misshapen, misguided, and misleading, because law always teaches. In such cases, it teaches error, in other words, ideas have results, and bad ideas have bad ones. The bad ideas encoded in supposedly moral-free laws are caustic of virtue, duty, civility, and human fulfilment. One of the calamitous consequences of allegedly moral-free legislation is that it tends to produce deep and widespread doubt in persons across the culture about what is right and wrong, which leaves only a resort to power as a way out of our moral dilemma.
In a moral vacuum, power and doubt rule all. Doubt makes us unsure of ourselves and our beliefs; power makes those who have it despotic over those who do not have it. Without morality in law, we know less well and less surely what is right. If we are ignorant about what is right and wrong, we can raise no compelling argument against evil, or even know it when we see it. Our ignorance makes it so.
In another perspective, all cultures are expression of deeply rooted values. Cultures are the historical outgrowth of those values – the historical human consequences of those values – values that sometimes lead to compassion, beauty, war, deprivation, heroism, or degeneration. Law is a function of culture – all cultures have law – which means that law is a function of values or morality. Law without values is cultural suicide, which is what those who wish to separate the one from the other are going to produce, whether they wish to or not.
Finally, in our age of increasingly complex moral problems, where technological advances outstrip moral growth and understanding, we must do our level best to cultivate the wisest persons, the noblest motives, and the highest actions of which we are capable. We need to make far better use of the law as tutor and moral ennobler. We must remind ourselves repeatedly that the best habitat in which to raise ennobled citizens is a well ordered society, one in which law is rooted in morality. We dare not forget that law is both an expression and shaper of the conscience of a nation. Consequently, the near-sighted and misguided movement to separate law from morality is as dangerous as it is impossible, both for our nation and for us as individuals. Our character is our future. Morality is destiny. Therefore, law merged with morality is the best and no other but the best.
Bauman M. Law and Morality
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