Sopuruchi Gift: Reinventing Morality: The function of the law.
Law is essentially a set of rules created and enforced by the state whereas morals are a set of beliefs, values and principles and behaviour standards which are enforced and created by society. There are three main theories which deal with law and morality.
Firstly the liberal view known as the Harm to others principle expounded by J.S Mill in 1859. Mill believed that the law should not be used to enforce moral principles on society but to protect harm to its citizens.
The second theory is known as the Moralistic view, harm to society principle which was put forth by Lord Devlin. Devlin said that society may use the law to preserve morality in the same way that it uses the law to safeguard anything that is essential to its existence.
The final theory is the most modern view, as put forward by Professor Hart in the 1960s. His theory is that the law should only intervene in the moral lives of citizens to prevent harm to others and harm to oneself.
Each theory agrees that law and morality are intimately related to each other as laws are generally based on the moral principles of society. Both regulate the conduct of the individual in society. They influence each other to a great extent. Laws, to be effective, must represent the moral ideas of the people, and for the law to represent the morals of its host society, its enforcement mechanisms, such as the courts, the police, must be in tandem with the moral demands of society. The question now is have we lost our Morality?
In the wake of recent happenings such as the rise in rape accusations, killings orchestrated by the police, and numerous reports of sexual abuse and violence, it may seem like there is no moral compass for our society, and that the law is inadequate to punish wrongs. There is some truth in the above assertion, for when the morals of a society is weak, the law enforcement becomes weak. The law itself does not change as it is a fixed set of rules. It is static. What changes and is malleable are the morals of the society, and the morals of the persons who enforce the law. If the moral conscience of those that make or enforce the law is erroneous, and corrupt, the law also becomes erroneous in its application. This is so as the law can be bent to suit a set of facts, or can be improperly enforced, by persons with a bad moral conscience.
The law cannot reinvent morality; morals invent the law, therefore morality can reinvent the law. If we can get our morals right, our laws and its enforcement will be adequate to correct existing wrongs.
For example, if we all agree that it is wrong to rape a woman, and we all make it law, and we believe that any one who commits this act has broken a moral code, and a person who was raped has been violated against, immorally, and against societal standards of right and wrong, society will then ensure that such person who was violated has access to speedy redress, will encourage such a victim to speak up and not seek to suppress the victim via improper enforcement mechanisms. The problem therefore is not with the law, but with the morals of those who enforce the law.
Anchor: The penal code in the Northern part of this country which is an important statue guiding that region has the age of consent to be 11 years. How do you perceive this reality as a passionate female?
Sopuruchi Gift: This concerns me, and disturbs me gravely. Consent is an act of reason and deliberation. A person who possesses and exercises sufficient mental capacity to make an intelligent decision demonstrates consent by performing an act recommended by another.
A child of 11 years does not understand the concept of consent, nor the total idea of sex and the full repercussions of sexual acts. The idea that a female child of 11 years can consent to sex is responsible for the high maternal mortality rate in Nigeria, which stands currently at 58,000 annually.
This assumption of a lower age of consent is also unsupported by law. Section 15 of Children and Young Persons Law sets the age of consent at 18. Also section 31 of Child’s Rights Act sets the age of consent at 18. The position of the Child and Young Persons Law and the Child’s Rights Act is in line with international standards and benchmarks on consent by a child.
The age of consent at 11 deprives a child of her right to grow and mature fully. It is important that the provisions of the Child’s Rights Act is domesticated in Northern states to safeguard the rights of children.
Anchor: most people feel our law needs to be stricter, punishments like death sentence and castration should be given to offenders who commit heinous crime like rape amd other crimes that debases our morality. Do you agree with these groups? What is your position?
Sopuruchi Gift: Good law is punitive and deterrent. It is meant to deter members of the society from committing a particular act because such act offends the collective morality of the society. However, it punishes the commission of such acts by imprisonment terms, fines, or capital punishment, like death and castration.
However studies show that capital punishment do not necessarily deter criminals. Countries with the death penalty do not have lower homicide rates. Many criminals don’t get caught, most criminals don’t receive the death penalty, and those who do are typically on death row for a long time, often at least a decade and sometimes more, so would-be criminals don’t typically make a connection between their crime and capital punishment.
We cannot conclude that the death penalty has any deterrent effect on crime, including rape. If it did, rape will be non existent in Nigeria. Castration on the other hand is not a bad idea. It’s a long lasting punishment
ABOUT THE AUTHOR
Sopuruchi Gift Rufus is a 500 level law student of the University of Nigeria, Nsukka. She is keen on capacity building, personal development and building a strong professional image.
For knowledge and Justice