LAW AND MORALITY IN OUR SOCIETY
Experience has been shown that attempts made by philosophers and legal realists to separate law from morality, not only proved difficult, such attempt has shown that law and morality will lose validity and the values they intended to achieve in society. The task morality set out to achieve will only be possible when law plays a complimentary role, in achieving a desired goal. More so, we must be mindful of the influence of morality on the development of Law and even the legal positivists cannot deny this fact. So the relationship of law to moral rules and standards is obviously one of great and abiding importance in every human society.
Holmes admits that “law is full of phraseology derived from morality, and by the mere force of language one frequently crosses from one domain to the other without realizing it”8. What this means is that law and morality are interwoven and cannot be treated in isolation of the other.
Hart, whose theory of law formed the basis of this work agreed with Holmes and said that "in all communities there is partial overlap in content between legal and moral obligation. Other legal positivists who tried to separate law from morality, which according to them would make law effective and better understood, could not accept the fact that law is thoroughly permeated with morality. And to such an extent the history of law is the history of the moral development of the race, and the practice of law tends to make good citizens and good men. While law is applied in society to restore peace and order, morality determines individual conducts and behaviour. Both are instrumental to good conduct and prevention of violence, destruction and other forms of anarchy in society. The existence of the society would not have been possible if we had not embraced law and appreciated the value of moral principles.
Both law and morality mean the existence of society, and either of them have no meaning without society. In order words, they can neither exist with society, nor can society exist without them. Again, human existence would have no meaning without them. So man is rational and reasonable today as a result of the influences he had from law and morality. And a look at many current controversial issues like homosexuality even when carried out in private and by consent, euthanasia, suicide, abortion, and the question of capital punishment is today becoming less controversial as a result of moral ideas current in a given community and man"s idea of rules which seek to lay down precise legal rights and duties.
H.L.A Hart does not agree that law and morality are never poles apart. The combination of law and morality according to Hart brings justice and harmony in human society. It gives meaning to human existence and ensures that the administration of justice is treating like cases alike. The command theory of Bentham and Austin for Hart is absurd and unreasonable. He rejected this view of Austin and Bentham, on the ground that if law is seen as a command it will, more often than not, lacks moral considerations. In this light, law and morality should, according to Hart, mould social policies and conducts and it is only when society recognizes this fact that human existent makes meaning.
In our general and humble opinion, Law and morality must go hand in hand for the fact that morality is concerned with social habits. More especially when these social habits are addressed as good or bad. Lucey A.R. is of the view that “the raging disagreement between positive law theorist and the natural law theorist should function collectively which will in turn remove iniquitous laws an immoral acts from the society”. Hence, law and morality can therefore be seen as tools for social control employed to control human behaviour and interaction in society in order to ensure the survival of society and man's peaceful co-existence.
According to Omoregbe, “law and morality perform normative, prescriptive and imperative functions and since they concerned with what ought to be and not with what defacto is the case, with values and not facts”. The well being of the human society is guaranteed. Man is a rational and moral entity; any attempt to severe the link and the complimentary functions of law and morality will not only hamper social habits, human existence will continue to be in chaos, brutish and short. More so, law and morality reinforce and supplement each other as part of the fabric of social life. For example, if we do not resist from physical assault on others and from misappropriating what belongs to others there can be no security of life and property. Our society will be one of lawlessness and disorderliness. The transactions and relations, which better human existence and the general good of the citizenry, will suffer untold hardship. The state that we must accept without much persuasion represents the very embodiment of morality and law. Socrates was also a “moral duty to obey the law”.
