Wednesday May 21 2014

Parliament is right; morals can be regulated by stroke of the pen

By Ian Mutibwa

The Ninth Parliament of Uganda has churned out all possible laws to curb “moral decadence” in Uganda. From the famous ‘miniskirt law’, which was in fact the Anti-Pornography law, to the Anti-Homo sexuality law and now the HIV Bill, which I presume will become law soon.

Sceptics have since argued that the Ninth Parliament concentrates on moral issues rather than economics, health and education. The speed at which moral Bills are debated and quickly passed into law clearly shows that the plenary has a thirst for morality.

The rush for laws on morality drives the fundamental questions that I believe trouble many minds: Are laws and morality one and the same? Can we separate laws from morals? Is a law on morals necessary? The answers to all these questions lie largely on one’s school of thought and appreciation of jurisprudence.

The issue of bundling laws with morality has been debated for centuries but it is mainly proposed by natural law scholars. There are a number of different theories of natural law, differing from each other with respect to the role that morality plays in determining the authority of legal norms.

Some proponents of natural law believe that both justice and law derive their origin from what nature has given to man, from what the human mind embraces, from the function of man, and from what serves to unite humanity.

Cicero, a famous natural law scholar, for example, states that natural law obliges us to contribute to the general good of the larger society.

Law, therefore, ought to be a reformer of vice and an incentive to virtue. This school thus propones that laws and morals go hand in hand and the law should be used to shape morals as the morals guide the laws enacted.

However, some critics of this approach on law and morality suggest that “we cannot legislate morality.” They argue that no nation in the history of the world has ever been saved from moral bankruptcy by enacting laws.

A mere enacting of laws because in a given society it is morally right does not mean that the same society shall pass the moral test.

In my opinion, the critics’ point of view derives veracity from the argument that morals are individual and cannot be regulated by a stroke of a pen.

They vary according to someone’s environment, persuasion and sometimes religious affiliation. A determination of morals to cut across would rather lead to absurdity in the law.

Historically, the question has not been whether laws led to moral reform or simply reflected a moral reformation that occurred within a society absent an initial legal component. It is not a chicken or egg type scenario.

The “chicken or egg” paradigm would lead us on a quest to determine the origin of that movement to see whether the law led to changes in morality or whether morality led to changes in the law.

In my opinion, while the laws do not operate in a vacuum and must be supported with social efforts designed to advance public morality, they do play a key role and can lead to moral reform. The point is that the whole “chicken or egg” question is, therefore, a fool’s errand. The argument on laws and morals may never end and it shall always be decided by the proverbial “coin toss”.

Be that as it may, it is important to establish the difference between laws and morals and as such leave you the reader to decide on this issue of the marriage of laws and morality. Laws regulate external human conduct whereas morality mainly regulates internal conduct. Laws are universal; morality is variable.

Laws are definite and precise while morality is variable. Laws are upheld by the coercive power of the State; morality simply enjoys the support of public opinion or individual conscience.

To legislate on moral issues is not to burden Parliament with trivial title tattle because societies evolve, culture evolves and the laws evolve as well. With evolution comes a new set of morals, and hence new set of laws. What our rather moral Parliament should focus on is the enforceability of these moral laws.

Mr Mutibwa is a legal and tax consultant.