Why morality must be considered in law

During a television program on one of the local channels, Andrew Mwenda, a well-known journalist in Uganda, referred to the Anti-LGBTQ bill that was recently passed by Uganda parliament as a law based on morality.

Reigniting the glowing embers of a debate which has flared up repeatedly over the last two centuries between the relationship of morality and law.

Mwenda contends that people shouldn’t be compelled to live a certain way by the state, a way of life that forbids them from engaging in a harmless and consensual private sexual activity just because the society finds it to be immoral or unethical.

Since the recognition of law as an effective tool for social ordering, there has been an ongoing philosophical debate about its relationship with morality. Some argue that law and morality are inextricably linked, while others believe that law can exist apart from moral considerations. This debate was set ablaze by the Natural and Positive law theorists during the ancient and post-reformation Europe.

Legal Positivists where against the nexus of law and morality, it’s argued that majority of them were either Moral skeptics because it purges morality from law or Secularists because it repudiates scripture even both.

Morality and the law have common origins. Laws were actually born out of morals. With its own power, the State established and upheld moral laws. It is crucial to realize that morality and law are not incompatible as Mwenda tries to draw a distinction. Instead, they complement and strengthen one another. 

These laws uphold social order and avoid harm. For instance, laws that forbid prostitution or gambling support ideals like hard work, fiscal responsibility, and sexual ethics, laws requiring the use of seat belts or helmets when riding a bike or motorbike help lower the risk of harm or fatality in collisions, laws against harm and protection of human life safeguard human lives, etc.

On the other hand, Mwenda’s position implies that laws like slavery and those which facilitated the Holocaust were validly written and enforced. He purposefully separates law and morality by accepting “morally iniquitous laws” and “legal rights and duties with no moral justification or force whatsoever. 

The exclusion of morality is an open bid to all other immoral, unethical, and unthinkable practices like bestiality, incest, etc.  As one critic of this theory put it that, “a philosophy founded on pleasure is a philosophy fit for pigs”. One cannot dispute that moral compatibility plays a role in a legal system’s stability. Even in the lack of legal repercussions, morality compels people to uphold the law.

In conclusion, Morality and law are two fundamental pillars of society. As an English legal philosopher H.L.A. Hart put it, “The law of every modern state shows as at a thousand points the influence of both the accepted social morality and wider moral ideals”.  It is important to recognize the role of morality in shaping the legal system of any country. 
However, something is not necessarily morally wrong just because many people believe it to be. Legislators should carefully consider where to draw a thin, fuzzy line between the two.
            Samuel Muhumuza Kayo,     Lawyer and Political [email protected]