RECIPROCITY ALLYING MORALITY AND LAW IN KENYA AND MANIFESTING STABILITY FOR AN IMPARTIAL SOCIETY

 

                                              Image on Freepik

INTRODUCTION

The world today is a bearer of different customs which support a foundation of individuals  behavior in the society. This article is meant to discuss in brief, the relationship between law and morality, the history of these two concepts and the difficulty in applying the concepts in harmony.

RELATIONSHIP BETWEEN LAW AND MORALITY

Morality and the law in Kenya are interconnected but distinct concepts. Morality innovates a set of principles and values that govern behavior while the law breeds a set of rules enforced by the state to regulate conduct. When the two are intertwined, social harmony is fostered and a just society is created. Not forgetting the words of Dr. Martin Luther King Jr while giving a speech about remaining awake through a great revolution at the National Cathedral, March 31, 1968. “The arch of the moral universe is long but it bends towards justice.[1]”

MORALITY AS THE BASIS OF LAW

Morality is an aspect that promotes altruism. An individual of high moral status will more often than not treat others with utmost respect and dignity, recognizing their rights and interests hence reducing conflicts, enhancing cooperation and building trust among individuals and communities in Kenya.

Kenya relies on a plural legal system therefore, when common and customary laws are combined, moral principles in the society are put to concern. Offences regarding theft, murder and assault align with widely accepted moral standards. For example, it is morally wrong to kill or steal from someone. This value has taken the form of a law. Additionally, law involves the basic principle of justice which can easily be achieved by focusing on morality.

MORAL SCRUTINY OF LAW

The sole purpose of the law is to foster social harmony and create a just society. Since justice goes hand in hand with morality, many legal practitioners have often related the two stating that any law which does not abide by moral standards should be revoked. Whether a specific law is right or wrong, it must be examined base on moral values.

DIFFERENCE BETWEEN LAW AND MORALITY[2]

1.      Law is objective while morality is subjective.

2.      Law acts within the territory of the state while morality is universal.

3.      Violation of law is punishable by state while violation of moral standards is not punishable by sate.

4.      Laws are concerned with part of man’s life while morals are concerned with the whole man’s life.

5.      A legal wrong may be morally right while a moral wrong may be legally right.

6.      There is a definite agency to enforce law while there is no definite agency to enforce morality.

CHALLENGES DUE TO INTERLINK BETWEEN LAW AND MORALITY[3]

Law and morality are common concepts since they both affect our lifestyle. This modern world experiences a clash between them since there are boundaries in which they must reach and additionally must depend on the existing legal framework. Some of the issues which can be analyzed to understand the struggle between law and morality from a practical perspective include: Abortion and LGBTQI rights.

ABORTION

Some reasons as to why abortion is legalized include the protection of a woman’s health and rights. On the other hand, it is regarded morally wrong since it involves the taking away of life, which on a spiritual basis is unacceptable. All these therefore create a lot of confusion.

LGBTQIA RIGHTS

The society today has several conflicts concerning the rights of the LGBTQIA community. Majority believe that being transgender or engaging in same-sex marriage is morally wrong. “The constitution of Kenya 2010 enshrines various rights of this community that must be upheld. Article 27 of the constitution of Kenya 2010 outlines the right to equality, this article further outlines that, the state shall not discriminate directly or indirectly against any person on any ground including race, sex, pregnancy, marital status, health status, ethnic or social origin, conscience, belief, culture, dress, language or religion. When this is brought to the moral context, innumerable confusions are garnered.[4]”

PHILOSOPHICAL ALTERNATIVES ON LAW AND MORALITY[5]

LON FULLER

Lon Fuller is a naturalist believing that there is a strong connection between morality and law. According to him, no law can be deemed valid if it does not pass the morality test. He also  categorizes morality into two aspects; morality of aspiration concerned with moral norms that are followed by an individual for personal interest and morality of duty outlining societal standards which must be followed for harmony.

H. L. A HART

H. L. A Hart is a positivist believing that morality and the law may relate but stand independent. According to him, a clear distinction needs to be made between what law should be and what it ought to be.

Dudley And Stephen Case[6]

Four people set on the boat for a journey far away from the land. Noe, it was clear that all of them would die due to thirst and hunger. One defendant agreed to kill one person so that others could eat his body and survive. He took this decision for the sake of others. According to that person, it was the only way for them to save their life. But when they reached the home, they were considered guilty of the murder of that guy. However, in that situation morally  he was right because he took the decision so that he can save his life and that of his friend but according to law, he was guilty of murder.

CONCLUSION

Law and morality share a complex relationship as they often interconnect and sometimes conflict. Morality provides the basic foundation for laws, as it defines the value and principles that strengthens the legal system. On the other hand, law is meant to uphold the common moral code and protect the interests of the society as a whole. However, there may be instances where law and morals conflict leading to ethical dilemmas and legal controversies. In such cases, it is necessary to balance the legal and moral considerations and strive to the greater good.

 

Sam Mbago is a law student at the University of Nairobi, Parklands campus. He can be reached at mbagosam1@gmail.com

Location: Nairobi, Kenya

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