JURISPRUDENCE 1.4 LAW AND MORALS

• Isochukwu
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• Jurisprudence I

Topic 2.2 LAW AND MORALS.

Hacker and Raz in Law, Morality And Society, note that there is no simple definition of morality. Oxford Dictionary defines it as the standard of right behaviour. Virtuousness. Morality refers to the standard of conduct that are generally accepted.

Karl Marx is of the opinion that morality depends on the classes of people you have in a society. Positivist like (Hans Kelsen) note that law and morals are not the same and should be separated. While Thomas Hobbes in his “Leviathan” stated that law and morals are identical.

There was a debate between Hart and Fuller (HART-FULLER DEBATE) on whether morals should be separated from the law.

Hart defends the positivists (law as it is rather than law as it ought to be). Prof Lon L Fuller criticised professor H.L.A Hart’s position for ignoring the inner morality. He also criticised John Austin’s theory of uncommanded commander. He notes that these writers were German thinkers who lived through the Nazi regime which was filled with evil. He notes that the law is meant to meet certain moral standards[1]. He notes that words have a “standard instance” (which is relatively constant) and a “penumbra” of meaning (which vary from context to context). Therefore, where the court is faced with an ambiguous law/word, it endeavours to give it the right interpretation in the interest of justice. The judge’s morals is called to play here.

Similarly, Lon Fuller in his work “The Inner Morality of Law” suggests that the law must have an “inner morality”. That the law should have some moral flavor. He lists eight desiderata which the law must conform with.

1. Generality: The law must be general and apply to all[2].
2. Promulgation[3]: The law must be enacted through due process. It should be published so as to justify the phrase ‘ignorantia juris non excusat’ which means ignorance of the law is no excuse[4].
3. Clarity of the law: it must not be ambiguous. Ambiguity in statutes give rise to disputes[5].
4. No retroactive laws: Lon Fuller says that “retroactive law is the brutal absurdity of commanding a man today to do something today”. See Section 36(8) 1999 Constitution, upheld in Bode George V EFCC. This brutal absurdity was manifested in the Military regime under the Miscellaneous Offences Decree of 1984. Under the provision of this decree, Bernard Ogedengbe and 2 others accused of drug smuggling were sentenced to death by firing squad. Notwithstanding that at the time they smuggled the drugs, there was no written law against drug smuggling.
5. Reasonableness: The law should not demand the impossible: couched in the phrase; lex non cogit ad impossibilia. Else it loses its essence. The procedure for obedience should also be simplified.
6. Duality: The law should bind both the lawmaker and the public at large. Nobody should be above the law[6]. The law should also not be contradictory[7]. It should not approbate and reprobate.
7. Constancy: The law should be as enduring as possible[8].
8. The law should not be so rigid: Although he advocates that the law should be constant, he recognizes that it should change in deserving circumstances to meet changing societal needs.

He (Lon Fuller) says that the above 8 Desiderata is encapsulated in the “inner morality of the law” and serves as a platform for appraising the validity or otherwise of laws.

Topic 2.2.1 DIVERGENCE BETWEEN LAW AND MORALS.

1. Internal V External: Emmanuel Kant notes that the thrust of law is external (regulates the manifestation of what a man is thinking) while that of morality is internal (appeals to the conscience and inner mind). E.g. a person cannot be charged for raping or killing or robbing a person in his mind. However, morality would appeal to his conscience to desist from such thoughts. Law would wait and see if he would actually do/commit the act/offence.
2. Law is more formal and predictable than morality.
3. The sanction of law has a more formal procedure of enforcement[9] while that of morality is informal.
4. Certain conducts which may be regarded as immoral are not criminalized: e.g. greeting elders, Adultery. In Aoko V Fagbemi, the court held that since there was no written law prohibiting adultery in Nigeria, the accused could not be punished for committing adultery in contravention of Section 36(8) 1999 Constitution.
5. Morality varies depending on the person, time and place while law generally cuts across tribal diversity and applies equally to Yoruba, Igbo or Hausa. Also people have different moral judgment. In Yoruba land, a child usually prostrates to greet his parents while in Igbo land a simple “good morning” may suffice. Some cultural mores advocate for female genital mutilation to prevent promiscuity while others abhor same.
6. Law is coercive while morality is largely persuasive.

 

Topic 2.2.2: SIMILARITIES/MANIFESTATIONS/ INSTANCES OF FUSION OF MORALITY AND LAW/ WHERE LAW HAS BEEN USED TO ENFORCE MORALS (FROM THE NIGERIAN PERSPECTIVE)[10]

1. Gay marriage: The Same Sex Prohibition Act 2014 of Nigeria criminalises homosexual relationships so does morality in Nigeria. Chapter 21 of the Criminal Code (Section 214-232 )(which is termed “offences against morality”) criminalises carnal knowledge “against the order of nature”, carnal knowledge with animal, gay knowledge, carnal knowledge with girl under 13, sex with an imbecile, pimping, prostitution or living in the company of prostitutes, management of a brothel (Section 225) and so on. Prescribes 7 years imprisonment as punishment. Morality also frowns against such acts. This takes us to:

THE WOLFENDEN REPORT ON HOMOSEXUALITY AND PROSTITUTION IN ENGLAND.

Set up in 1954 to investigate the role of morality in the law and ascertain the propriety of criminalising homosexuality and prostitution. A summary of the recommendations include:

• That criminal law should preserve public order and decency.
• Law should protect the citizens from what is offensive or injurious.
• Law should provide sufficient safeguards against exploitation and corruption of others (particularly the vulnerable young and weak of body and mind).
• Law has no business with the immorality of citizens done in private. Others are not exposed to it and even if immoral acts (like homosexuality) done in private were to be criminalised, it would be difficult to enforce. Moreover, it would do more harm that good as most people would be blackmailed by fake lovers who only seek to mar their image.
• Prostitution should not be made illegal except it is done in public (like soliciting on the street).
• Homosexual acts between consenting adults in private should not be illegal.
• If there can be freedom of religion why can’t there be freedom of private morality?
• A country that has declined to enforce any Christian belief has lost its right to enforce Christian morals.

Upon these recommendations, the HART-DEVLIN debate ensued.

Devlin disagreed with the report and argued that there is nothing like private morality. That immorality in the view of the law is what a reasonable man would consider immoral and have a real feeling of disgust towards the act.

Hart queried Devlin’s logic. Arguing that the legislature should ask whether the general morality is based on ignorance or superstition. He says most people see homosexuality as immoral and without any reason, justification or explanation for their belief. He distinguished positive morality from critical morality. The latter used in criticizing. That we should not think that a conduct is wrong because the majority believe it to be without any basis or rationale. In summary he is of the view that the standard of a reasonable man (as Devlin submitted above) may be filled with bias, ignorance and superstition. Most of the Legislators against it may be engaging in immoral and homosexual acts themselves.

Dworkin argues that the thought of majority that homosexuality is abominable may be a compound of prejudice and biased thought.

What is your take on the Devlin-Hart debate?

 

2. Prostitution: In Shaw V Director of Public Prosecution[11], Sir Frederick Charles Shaw published a magazine called the Ladies Directory. It contained the bio-data, nude photos and contact information of various prostitutes. With a view to assist the prostitutes sell their market. He was sued for conspiracy to corrupt public morals. The House of Lords (Per Lord Simmonds[12]) stated that the court should reprimand and shun offences which are prejudicial to the public welfare and morality. Section 222 and 223 Criminal Code also criminalises prostitution and pimping.
3. Abortion: is the termination of a foetus/an unborn child from the mother’s womb. The pro-life school believes that only God is entitled to take the life of another. See Section 228,229, 230 of the Criminal Code which criminalises it too. While the pro-choice school believes that a person has the right to decide whether she wants to deliver a baby or not. See R V Bourne. In Roe V Wade, the viability test was applied to hold that anytime before the foetus reaches 6months the mother can abort. Beyond which she cannot. Abortion is still prohibited in Nigeria sha.
4. Murder: various laws prohibit murder. So does morality. The prohibition was taken to the extreme in Speluncean Explorers story, where four defendants while exploring caves in May 4299 got trapped in one. On the twenty-third day, they were sore hungry. One of them (Roger Whetmore) proposed that they cast lots with a dice and whoever the lot fell on should be eaten. The dice was cast and the lot fell on him. He was eaten. Upon their rescue from the cave, they were charged for the murder of Roger Whetmore and sentenced to be hanged. See R V Dudley and Stephens[13], three men and a boy were trapped in an Island. After 8 days without food, the 3 men killed and ate the boy. After their rescue (which was four days after the incident) two of the men were tried for murder. The Queen’s Bench held that there is no general principle of law which entitles a man to take the life of an innocent man in order to preserve his own. Section 33 of the 1999 Constitution Guarantees the right to life and frowns against the unlawful taking of another’s life. Section 315, 316, of the Criminal Code, Hyam v. DPP, and so on. This conforms with morality.
5. Non-Profit from wrong: The principle of ex turpi causa non oritur action seems to invite morality to the law. Lord Mansfield in Holman V Johnson noted that no court would lend its aid to a man who founds his cause upon an immoral act. See also Spiers v. Hunt: Viatonu V Odutayo.
6. Theft: Criminalised in Section 383(1) of the Criminal Code, Section 286 Penal Code and other statutes both home and abroad. Upheld in a host of cases State V Odimayo, R V Orizu. See Robbery and Firearms Act. Morality also frowns on theft or conversion of another’s property.
7. Fraud and Dishonnesty: Is shunned by morality so do various statutes. See Section 419 of the Criminal Code, Section 465 CC, Section 2 of the ICPC (Independent Corrupt Practices and other Related Offences Commission) Act, Article 1 of the Code of Conduct Tribunal Act, Section 98, 98 A and 98 B of the Criminal Code, Section 115-119 of the Penal Code…the list is endless.
8. Rape: See Section 6 and 357 of the Criminal Code, 37 and so on. See R V Seidu, Johnson V Mayberry and so on. Just like morality.
9. The Principles of Equity: Probably, equity is the most radical “introducer” of morality and justice into our laws[14]. Broadly speaking, equity is that which is fair, right and just… a moderator of the rigour of legal rules seeking to mitigate the harshness. Technically speaking, it is the law administered by the early courts of chancery[15]. It began to gain grounds following the Earl of Oxford’s Case. In Shell V FBIR, the Supreme Court allowed Shell to deduct expenses incurred from the provision of scholarship to students from their profit even though this was not expressly allowed under the law. In Craig V Craig: the petitioner’s suit for dissolution of her marriage on grounds of adultery was rejected because she was also guilty of adultery. In Oilfield Supply Centre ltd V Joseph Lloyd Johnson, the plaintiff was estopped from suing for the winding up of the defendant company because he got into the employment of the company by irregular means. In Gills V Lewis, the relief against forfeiture of premises was refused as the plaintiff has been using the premises for immoral purposes. Overturn V Bannister. In essence the courts have consistently required some moral uprightness of the plaintiff.
10. The Principle of Natural Justice: couched in the two pillars audi alteram partem (hear the other side) and nemo judex in causa sua (you cannot be a judge in your own cause) appears largely procedural, but eats deep into the substance of a case. This requires a moral character in the judge. Entrenched in Section 36 1999 Constitution and upheld in various cases. Like Garba V University of Maiduguri: A.G Oyo V Nosiru Bello, LPDC V Fawehinmi. This is further consolidated by the repugnancy doctrine[16].
11. Swearing on Oath with the Bible and Quran in the courts.
12. Common Law Principles: like wager contracts, uberrimae fidei[17], duty of care (see Donoghue V Stephenson), and so on seeks to ensure proper and right conduct thereby having some inner morality.

The list goes on.

In Conclusion, the points illustrated above all seem to overthrow positivism and instil some moral character in the law. What is your position?

[1] Even Gustav Radbruch who was originally a positivist until he saw the Nazi tyranny and the various evils it produced. Then he was converted and started advocating for the law to meet certain moral standards.

[2] However, in practice there are certain laws that apply to specific class of persons. E.g. The Childs Right Act, Infant Relief Act, CAMA, Illiterates Protection Laws and so on.

[3] See Section 9 and 58  of the 1999 Constitution which deals with the Law making Process. Furthermore, in taxation, the requirement of promulgation is considered extremely fundamental- S. A. Authority V Regional Tax Board.

[4] See Decree 1 of 1966.

[5] In Taxation, ambiguity is resolved in favour of the taxpayer- Lord Cairns in Partington V AG also the case of Cape Brandy Syndicate V Inland Revenue Commission.

[6] In practice, certain persons are granted immunity. E.g. Section 308 of the 1999 Constitution immunises the president, governor and the likes from prosecution while in office. This was reiterated in Tinubu V IMB Securities. There are also various recognised diplomatic and consular immune privileges. See Trendtex V CBN.

[7] In practice, the hierarchy of laws would apply with the superior one succeeding. E.g. Section 1 of the 1999 Constitution makes it the supreme law of the land and inconsistent laws would submit. What about where two provisions of the constitution clashes? In United States V Cardiff, the court says that where two provisions of a statute clashes, the conflict is resolved in favour of the accused/defendant.

[8] Our Constitution has been amended several times, our Companies Acts (1912, 1914, 1917… 1968, 1990), our banking Laws have been severally amended. In fact almost all our laws have been amended severally.

[9] As can be found in the Criminal Procedure Rules and the various Rules of the various High Courts of the States.

[10] Pardon my grammatical inadequacies.

[11] (1961) 2 All ER 446.

[12] Relying on Lord Mansfield’s statement in R V Delaval (1763), 3 Burr at P. 1438 where he said; the court of the Kings Bench is the custos morum of the people and has the superintendency of offences contra bonos mores”

[13] 1884 14 Q.B.D. 273.

[14] This discussion on equity must also be included to the discussion on law and justice in the exams.

[15] This technical definition is unnecessary in the light of the fusion of both systems by the Judicature Act 1873 and 1875.

[16] Section 26 (1) HCL Lagos and Section 14(3) now 18(3) of the Evidence Act. Which provides that for any custom to be relied upon, it must not be contrary to natural justice, equity and good conscience. Nor should it be contrary to public policy or any existing law.

[17] That a party should disclose relevant facts within his knowledge to the other party. Usually applies in Insurance contracts.