African Jurisprudence: The Law as a Complement to Public Morality

Author

Associate Professor, University of Benin, Benin City, Nigeria

Abstract

Every society is governed by certain rules (the law), customs, norms and values; and these are intricately crucial to the maintenance of public morality. Invariably, there is a public morality which provides the cement of any human society; the law, especially the criminal law, must regard it as a primary function to reflect and maintain this public morality. Criminal Codes lay down various offences categorized as criminal or immoral, for they lay down ‘Offences against morality’ (including rape, elopement, indecent assaults, defilement, detention with sexual intention, prostitution, abortion, unnatural offences and incest); but these are mainly sexual offences or offences related thereto. They do not capture enough of but has prevailed over what count as moral values or public morality. It is thus quite evident that the law reduces the concept of morality to just one small aspect. This narrow interpretation of morality is deficient because it downplays the full involvement of the people who are to be affected by these laws. This is the laxity and bane of current evolution and application of the law among modern Africa states. Thus, the important issue was the critical question of the relationship between the law and morality; should the law determine public morality or should public morality determine the law? This question has confronted major western theorists and jurists for decades. This article adumbrated this claim and concluded that the law, at least, in traditional Africa (as expressed in the experience of the Etsako of Nigeria), is an arm of public norms and morality; in other words, that public morality is a metalaw.

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