Law and Morality: A Tale of Two Courts

Public opinion and a court of law may reach very different conclusions, especially when people treat moral wrongdoing as proof of a crime. Onikepo Braithwaite argues that this confusion often fuels anger at the judiciary, the legal system and the government when legal outcomes fail to match public expectations.

The column draws on the idea of inclusive legal positivism, which treats law and morality as conceptually distinct even though they can intersect. Conduct may be considered immoral without being unlawful. Braithwaite uses examples including marriage between two sisters, abortion and so-called white lies to illustrate that moral or religious judgments do not automatically become statutory offences in every jurisdiction.

Some legal systems deliberately incorporate moral standards into legal reasoning. The article cites Saudi Arabia’s Sharia legal system as an example. Nigeria, however, keeps morality separate from its legal system. The 1999 Constitution, as amended, excludes criminal jurisdiction from Customary and Sharia Courts, narrowing the range of conduct that may be regarded as a statutory offence because of custom or religion.

The column also cautions against treating the Constitution as a complete operating code. Although it is the supreme law, many of its provisions take effect through ordinary legislation, institutions and procedures created under it. The Constitution establishes the state, distributes power, sets limits and states principles, while some clauses operate immediately by conferring jurisdiction, creating offices or invalidating inconsistent provisions.