In this maiden piece, I will dwell on the relationship between law and morality as two related but distinct sophisticated social phenomena. The discourse on law and morality has lingered from time immemorial and remains very interesting in understanding behavioral patterns and control of society. While Morality seems to be preferred by many against the law, the importance of law in the maintenance of morality, order, and peace cannot be over-emphasized. The important thing to note here is that the law sometimes follows moral views while at times it does not.
While law exists to ensure social order and the due administration of justice in an organized society, morality is a set of values common to society that are normative, specifying the correct course of action in a situation and the limits of what the society considers acceptable. Acceptability of morality in a given society is therefore relative unlike in law. This is a major divergence in the two concepts. Something can be morally wrong but legal or morally right but illegal. This goes on to prove that an act can be good but wrong or bad but right; thus, while law looks at what is right or wrong, morality looks at what is good or bad. For instance, a situation where two sons of an aged parent fight and one kills the other. The law prescribes that upon conviction, the killer must be sentenced to death for killing his only brother. The accused might plead to the judge for the sake of the life and sustenance of the aged parent who might die if the only surviving child is sentenced to death for killing. In the eyes of the law, the accused must face his sentence, which is the right thing to do, but it may be bad doing it. On the contrary, pardoning the accused for the sake of the life of the aged mother is good but wrong.
In our criminal code, adultery is not a crime so long as the parties consent to it and the consent is not obtained by coercion, intimidation fraud, or pretending to be the husband of the wife. Adultery is therefore not a crime but morality condemns it in strong terms
In defense of adultery and other social acts that do not occasion harm to others, Edwin Schur, in Crimes Without Victim,s, stated that there are crimes that do not harm anybody but the perpetrator himself. Such crimes as drug abuse, abortion, and homosexuality, though viewed from legal perspectives, could constitute crimes, but since they do not cause harm to anybody in society, they should be decriminalized.
Many pundits, such as Prof Hart, were of the view that legal enforcement of a moral pattern of life was unnecessary. He argued that it would prevent the development of morality, self-determination, and interference in individual liberty.
However, a problem arises between law and morality. According to Emile Durkheim, every society has its basic morals, and each individual in life, even in that same society, is different. For instance, Mr. A and Mr. B might come from the same Agwa, however, their views must not be held to be the same. What Mr. A might say to be morally right, Mr. B might argue to the contrary or show indifference to A’s views as evidenced in the Case of Gillick Vs West Norfolk and Wisbech Area Health Authority in which Gillick felt that providing contraceptives to underaged girls was morally reprehensible as it encouraged under aged sex, the other party felt it would reduce unwarranted pregnancies in under aged girls. The problem now became which moral view the law follows and the decision was on what was legally right under British Law and not on moral arguments.
Generally, every society in the world has its pattern of behavior, attitudes, and norms. During the colonial period, most laws that were accepted in different parts of Nigeria were the common law which originated from England. What was common to the British societies was imported into Nigeria and since Nigerian norms and beliefs were different from the British, there was a conflict between Nigerian local customs and British common law. For instance, the law of Bigamy is alien to Nigerian Culture even though it is a law. The average Nigerian cultural belief allows a man to marry more than one wife. That is why most of our Obas, Ezes, Igwes, and Emirs always have more than one wife. The law of Bigamy has never been accepted by the average Nigerian Ethnic Culture. The British, in 1973 manufactured the Repugnance Test to allow for the existence of diverging customary laws vis a vis the imported customary laws so long as such customary laws are not repugnant to public policy, natural justice, and fairness. But the big question is how to determine the repugnant nature of Nigerian Customs. How do will ascertain that a custom is repugnant to natural justice, equity, and fairness in juxtaposition with a foreign customary law? Sequel to this, it has been argued that the Common Law should be subjected to the repugnancy test before being accepted in our customary laws.
