The Fractionalization Of Morality From Law, A Catastrophic Risk To Nigeria’s Jurisprudence And The Socio-Legal Perspective.

BY: Ibrahim Muhammad Usman.

What we have today as Nigeria is the conglomeration of different ethnicities with distinct cultures and moral philosophies that came together under one umbrella as an aftermath of the 1914 amalgamation under one colonial government. Most of the laws applicable today are extended down to us through the reception clause in the name of the received English law, to which replicates the customary practices of the English peoplen that is in all ramifications, antipodean to our rich moral and customary practices, resulting in varying moral imbalance just as m crocodile cannot give birth to lizard. The central focus of the paper is to X-ray the ills and precarious conditions we are exposed to as a result of the redomestication of the Western secular legal system into our land with a socio-legal microscope.

Culture and socialization are the two indispensable Barnouw for every human civilization which are determinant factors of every societal and procreational instincts, for the hitch-free running of humanity and errancy to them would lead to a literal extinction of every human society. John Locke blamed criminal behaviour upon poor socialization rather than an innate tendency to offend. Offenders he said, should not be viewed as monsters but instead, as people who lacked the self-discipline to control their passion.

Socialization is just an extension of culture which is a process of transmitting cultural values, all beings have some moral values and these values are known to the younger ones through socialization , and socialization according to Anthony Giddens, is the process whereby an infant gradually becomes self-aware and knowledgeable person, skilled, in the culture of the society which he or she is born and brought up in. Socialization is therefore, a fundamental process in every society and one of the main conduct which humans pass down their culture from generation to generation by way of institutionalized and a well-organized social structure through which humans actions and inactions are carried out by way of interactionism where subcultures are formed through the metamorphosis of divergent conglomerated cultures. Culture according to Edward Taylor (1871), is a complex whole which includes knowledge, beliefs, arts, moral laws, customs and any other capabilities and habits acquired by a man as a member of a society, and to Barnouw (1975), culture is a way of life of a group of people, the configuration of all the more or less stereotyped patterns of learned behaviour, handed down from generation to generation by means of language and imitation, it is on this note that I borrow the words of Laurence Sterne where he says, “ A man should know something of his own country, too,before he goes abroad”.

Human societies with varying cultural and moral principles do interact and mingle on their dailies for business and other purposes, symbolic interactionism and structural functionalism come to play some concomitantly pivotal roles, human society to the functionalists, is compared to an organism, comprising of various systems and components n’t coalesced and make it an upright and complete organism, where a dysfunction in one system would abruptly result in malfunction of the whole, an emergent vice from its epicenter would through human interaction, be ubiquitous especially in our today’s 21st century where the world is at our finger tips, and the collective societal indifference with regards to this, continues to render our societies vulnerable to many ills, perils and immoral attitudes.

The family institution as the bedrock of every societal transformation, orientation and reorientation of off springs, is faced by parental negligence towards ensuring that the younger ones are raised and nurtured to the societal ideals and aspirations, with a sense of moral blame worthiness exposes our societies to an open-ended catastrophic risks of falling into the commission of illicit and heinously immoral acts which both legal and moral codes would censure and nature would continue to cry louder for moral balancing.

A biologist and psychologist, Jean Piaget, profounded the theory of moral development with two fundamental stages viz:

Stage 1: Heteronomous morality, and
Stage 2: Autonomous Reality.

The former deals with the early stage in children’s cognitive and moral development where children follow strict rules and are obedient to the authority. For children in this stage, rules are seen as inflexible things that do not change, which Piaget calls “Moral realism”, While the latter is a stage where children learn best by situations that required collective decision making and problem solving with others.
Kolberg Lawrence also laid down some stages which he called theory of moral development, among which is “Preconventional morality”, to him, this denotes moral thinking that is egoistical, and he says that rules and conventions are external to the self and adherence is chiefly motivated by the desire to gain “pleasure” and avoid “pain”. On this, Immanuel Kant is quoted to have said that “Conscience is an instinct to pass judgement upon ourselves in accordance with moral laws” and also “the business of philosophy is not toi give rules, but to analyze the private judgements of common reason, as man by nature is endowed with common sense and reasoning, and instinct for “ought” and “is”.

Natural law to its profounders is said to be a guide and a minimum requirement which every positive law must meet and confirm in order for it to be valid. If positive law (Man made law) is at variance with natural law, it could lead to Injustice to the society. Itu is on this premise that we can deduce the fact that nature or God should be the mirror for all our conventions, laws and policies for nature’s infallibility and perfection, and the beginning of our troubles is the superimposition of a positivist secular law and an errant philosophical conviction of the western world upon the orthodox African morally and culturally inclined societies which exposed us to the Pandora’s Box, and the Genesis of all our moral and ideological imbalance is the self deception for embracing the ideology of divorcing morality from law which is antithetical to the ideals of natural laws. There is lack of reasoning in dichotomising law from morality, because, most laws are derived from morality so as a river should not forget its source. The beginning of this malady is in the late 19th Century despotic jurists and philosophers.

Morality is a concept relating to certain normative patterns whichday aims at the augmentation of “Good” and reduction of evil in individual and social life, it deals with the absolute ideal or the universal good. The essential principle of morality according thing Aristotle is enunciated in the Latin maxim “bonum faciedum malumque vitandum” Which means good must be done and evil must be avoided. While law on the other hand , has no equivocal and generally acceptable definition.

Various attempts to define law from the perspectives of various schools of thought in jurisprudence had varying attempts. The search for an acceptable definition has led to a plethora of theories epitomised by different schools of jurisprudence, all of them trying to unravel the origin, nature and essence of law particularly its role in the society which may not be discussed in details.

From time immemorial when there was no formal process of law making, men have a way of regulating their affairs through moral codes, and these moral codes were sustained through various means, among which are; taboo, abandonment, outcast, barnishment, etc. It shows that the process of law making to regulate the affairs of men is not alien to them ab initio, it is just the institutionalisation and formalisation of a mere existing system. An attempt therefore to distinguish a coterminous process that transmogrifies from an existing system may lead to a fallacy of circularity and a chasing shadow exercise. This is not to argue that there is no any discrepancy between the two, but it is another way of putting it that the former (law) emanated from the latter (immorality).

The relationship between law and morality has provoked a cloud of serious contestation between the natural law thinkers and the positivists. The controversy has snawballed into the popular Hart-fuller debates. In a lecture delivered by H.L.A at Harvard School of law in 1957 Tittled “positivism and the separation of law and morals”, Hart vigorously argued that there must be separation of law from moralityi and that the two concepts should be put in a watertight compartment such that they are not interrelated. Fuller in his reply to Hart’s Argument published an article titled “Positivism and fidelity of law: a Reply to Prof. Hart”, where he vehemently argued that morality cannot be separated from law. Hart published his book “The concept of law” in 1961 as a rejoinder to Fuller’s article, while Fuller published a book titled “The morality of law” in 1964 as a reply to Hart’s Argument.

Dichotomising law from morality in the context of Nigeria’s jurisprudence is very fatal as there is umpteen number of statutorily enacted legislations and constitutional provisions that give a lot of emphasis to some elements morality. Law is at one face and morality Is the other side of the coin of Nigerian Law, and a numberless legislations are enacted to give life and protect public morality from being endangered.

Our laws in Nigeria are a reflection of our morals, norms and values. Nigeria’s constitution guarantees the right to personal liberty, the right to private and family life, freedom of association and in the chapter four of the 1999 constitution, the same constitution that donates these rights to individuals has robbed them of the efferonteny from injuring public morality. While exercising their rights, likeu the enactment of the same sex marriage (prohibition) Act 2014, the criminalisation and prohibition of the registration of gay clubs, societies, organizations, their sustenance, processions and meetings, the criminalisation of indecent exposure with the intent of causing distress or sexual temptation through the exposure of one’s genital organs by section 26 of the violence Against persons prohibition Act 2015, the enactment of various Anti corruption laws, provisions of National Ethics, prohibition of marriages between persons within the degree of consanguinity section 3 (1) (9) is also an element of morality in Nigeria, so also the Supreme court in Mudashiru V. Onyeanu held that “the court will do justice even where the law or statute does not specifically provides for such a situation…” So also the English case of Shaw V. DPP where Shaw was paid by some prostitutes to display their nudes or private parts to the public and the court convicted him for the offence of “Conspiracy to corrupt public morals”. In the English case of KNULLEE V. DPP, the court cited the earlier case and held the two consenting adults who engage in the act of homosexuality in the secret of their homes, the law will not frown at them but when it comes to advertising such an act, then it’s a means of “Corrupting Public morals”. LORD COKE state obiter that “Society tends to disintegrate faster in the face of moral decadence than it does in the case of external aggression….”

It is on this note that we have to pause with a retrospective glance as to where we are coming from and the journey ahead, as we are the architects of our lifestyle, but shaped by common reasoning and with recourse to our ancestors and modern modus operandi.

For criticisms, comments and Contribution(s), contact me through the following addresses as your contributions will be welcomed with keen interest.

WRITTEN BY: Ibrahim Muhammad [email protected]

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