The development of law has been largely by morals. Much of the legitimacy surrounding the authority of the law is associated with the belief in a moral obligation to obey the law. Law can be defined or better still described as the aggregate of legislation, judicial precedents, and accepted legal principles or the body of rules, standards, and principles that the courts of a particular jurisdiction apply in deciding controversies brought before them.Morality on the other hand refers to a system of duties, ethics, and recognized rules of correct conduct generally acceptable in a particular community. While these two concepts seem to be two parallel lines on the surface, they do have points of intersection and convergence.
THE DIVERGENCE OF LAW AND MORALS
While law and morality have a number of common grounds, there are some inalienable distinctions between these two concepts.
The law may condemn and even punish immorality in various forms but it may refrain from attaching legal consequences to some kinds of immorality. Moral sanction is guided more by public opinion than by anything else. For example, the criminal law imposes on a parent a duty of care towards his infant child but it does not similarly obligate a non-parent. But morality would impose equal duty of care on biological and non- biological parents.
Law is coercive while morality is persuasive. Law prescribes sanctions against violations, e.g., imprisonment, fines, seizure, confiscation or forfeiture of property, etc. In many cases, these sanctions may be coercive, for example, criminal law. Although others may be not so coercive – for instance, power-conferring laws such as those on marriage, wills, and contracts – they still contain some elements of sanctions or deprivation or denial of benefits or privilege.
Law is a product of conscious, formal procedure in contrast with morality which is created informally. Man-made law does not just emerge out of the blues with the few exceptions of dictatorships or autocratic systems (for example, military governments in Nigeria) where the will and caprice of one man or a group of men can be legislated into law overnight. In modern democracies or even pseudo-democracies, enacting a bill into law goes through series of procedures outside and within the legislative houses. It is only when it is finally passed by the legislators and assented to by the President or Prime Minister that it becomes law. But there is no such air of formality or procedures in the making of morality. In fact, morality is not made; it grows or emerges. Pre-existing moral norms are handed down from generation to generation until the people find it unacceptable and abandon it.
Rules of law are enforced by force external to the person required to obey but moral rules are enforced by internal force i.e the conscience of the person.
Rules of morality lie in the realm of liberties merely importing no idea of obligation whereas rules of law connote the existence of rights together with their correlative duties in communal relationships.
Law prescribes right conduct whereby morality prescribes good conduct and sometimes, that which is good might not be right and vice versa.
According to Immanuel Kant, the thrust of law is external (that is, law intervenes only when there is an external manifestation of what a person is thinking about) while morality is a matter of internal conscience. This is evident in inchoate offences in criminal law such as the law of attempt, as codified in Section 4 of the Criminal Code. Therein, an attempt does not become punishable unless the offender manifests his intention by some overt act.
THE CONVERGENCE OF LAW AND MORALS
Some of the similarities between law and morals are as follows:
Laws and morals both have normative characteristics; both attempt to impose certain standards of conduct without which human society would hardly survive and as such they both reinforce each other as part of the fabric of social life.
Laws generally speaking uphold the moral standards of the communities to which they apply.
They both indict some particular ways of human conduct. However, every immoral act is not indictable except there’s an injury suffered.
While the overlap and interrelatedness of law and morality cannot be overemphasized, it would be instructive to examine the Wolfenden report to put things in perspective. By the Wolfenden report, reliance was placed on the non intervention of the law argument of John Stuart Mill, that the law should not intervene in matters of private moral conduct more than is necessary. This is to preserve public order and protect citizens against what is injurious and offensive. In other words, there’s a sphere of morality which is best left to the individual conscience. For example, the committee considered the criminalizing of homosexual acts as going beyond the proper sphere of the law’s concern; however when such takes place in public, it is an offence against public order and decency.
They also argued that law must not be equated with sin.
These positions came under strong criticisms by Lord Devlin in his essays, The Enforcement of Morals, where he argued against the Wolfenden Committee’s assertion that there must be a realm of morality and immorality which is not the law’s business. In Shaw v DPP, the dictum of Lord Mansfield in Jones v Randall was invoked by the majority to the effect that whatever is contra bonus mores et decorum is prohibited by the law and must be restrained and punished. In the case, Shaw was found guilty of a three count offence, the third being conspiracy to corrupt public morals. This decision has been recommended by many on the ground that criminal offences must be defined as precisely as possible and the words – ‘conspiracy to corrupt’ are nebulous. In criticizing Knuller v DPP likewise, the majority view was that the court was punishing immorality in Shaw v DPP.
Lord Devlin argued that a complete separation of crime from sin could not be good for the moral law and might be disastrous for the criminal. According to him, society is a community of ideas where there are fundamental agreements as to what is good and evil, and that such society would disintegrate if such agreements are consequently disregarded. He argued that all sexual immoralities evolve because of the exploitation of human weakness e.g the prostitute exploits the lust of her customers and all the customers exploit the moral weakness of the prostitute as such, if the exploitation of human weakness is considered to create a special circumstance, there’s virtually no field of morality which can exclude the law. This was in response to the Wolfenden report that law should not allow exploitation and where there’s no exploitation, law should not intervene.
Devlin was of the view that the moral judgment of society must be ascertained before any attempt is made at changing the criminal law. This judgment is however determined via the view point of the man on the Clapham Omnibus- the test of the reasonable man. In Nigeria, a reasonable man has been likened to a pleasant housewife shopping for meal in Sandgrouse or the ordinary worker in Kano Native City living on his Tuwo. Devlin described a jury man or woman as middle aged, middle minded and middle class. He advocated for the consideration of maximum individual freedom in determining what is morally reprehensible.
To him, common morality is the essence of any community and in order to preserve itself society has the right to legislate against any type of immorality which could lead to disintegration. He said that the dividing line between criminal law and morals is not easily determinable. A society cannot live without morals. Such morals standards are that which a reasonable man approves of. A man who approves of moral standards must also support the instruments by which such standards can be maintained. The two instruments are- teaching which is doctrine and, enforcement which is the law. Thus he upheld the position that the law should enforce morality.
From the foregoing, it is evident that law and morals cannot be said to be parallel lines. In fact they are perpendicular one, to the other, sometimes even crisscrossed. One cannot look at or hold one in isolation to the other. This explains Gianville Williams’ position that Lord Devlin’s stance is a plea for alliance between the priest and the policeman for the enforcement of religion.