31st oct,2023

Name: Jeremiah Deborah Lourina

Question:
Most positive law philosophers insist on the separation of law from morality and even
concluding that law does not concern itself with morality. John Austin even proceeded to
advocate purging human law of all moralistic notions and defining key legal concept in strict
empirical terms. Yet the enforcement of moral norms and value have continuously formed the
bedrock of legislation in Nigeria; therefore, it is argued that morality and law have common
ground and often overlap. Discuss. (17.5 marks)

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 I. Introduction
In an attempt to gain a deeper understanding of this matter, it is essential to conduct a thorough
analysis of the concepts of morality and law and how they have been effectively applied within
the context of Nigeria. Also, it is pertinent to recognize that the world we inhabit is characterized
by a diverse array of beliefs, values, regulations, and norms, all of which dictate proper conduct
in society. Nevertheless, no society can function without a set of regulatory frameworks to
prevent lawlessness. Therefore, it is crucial to establish clear distinctions between these various
elements to avoid confusion and ambiguity. Among the conflicts often discussed in tandem are
law and morality. Laws consist of formal rules that dictate our conduct as members of a society,
specifying both what is required and what is prohibited 1, same are implemented by the state and
judiciary to create a basic and enforceable standard of behavior for the welfare of society.
While morality on the other hand refers to an informal framework of values, principles, beliefs,
customs, and ways of living. Morals are not legally enforceable but there is societal pressure to
abide by the same2.
The law comprises a set of mandatory rules and regulations that individuals must adhere to,
while morals are optional and not obligatory. The connection between law and morality is
intricate and has evolved over time. Initially, they were viewed as synonymous, but as society
has advanced, it has become evident that they are distinct concepts, albeit with a degree of
interdependence between them.3 Against this backdrop, this analysis will explore how law and
morality are interdependent despite the fact that Austinian school of thought posited that law
should be purely law and separated from any element of morals and logic.
II. An Overview of John Austin and Legal Positivism
Throughout the course of history, a discernible boundary between law and morality has rarely
existed. Due to this lack of differentiation, laws have typically arisen from the prevailing moral
values held by a society's members. Over time, the government adopted these moral principles
and formalized them into legal statutes and regulations. 4 This value has been codified as a legal
principle. Over time, morality may have become distinct from legal regulations, but it still plays
a vital role in the evolution of the law. Fundamental legal concepts, like fairness and equality, are
essentially rooted in ethics and morals, which John Austin challenged.
John Austin5 was influenced by Jeremy Bentham, and the impact of Bentham's utilitarianism is
clearly discernible in Austin's most renowned work today. He contended against the natural

1
< [Link] retrieved on the 31st October, 2023.
2
Id.
3
id
4
For example, it is morally wrong to kill someone or to rape someone. This value has taken the form of a law
whereas it is from morality.
5
Born in 1790s

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school of thought, which posited that the laws were to be derived from the terms in which God
had revealed them.6 as established by the holy books7. while Austin urges significantly that there
should be an analyze of class action not the utility of particular acts. He however defined law as
the command of the sovereign8 backed up by sanction9. Furthermore, Austin contended that the
presence of a law is a distinct matter from its quality or lack thereof. The question of whether it
exists or not is one investigation, while the question of whether it aligns with a presumed
standard is a separate inquiry. A law that does indeed exist remains a law, regardless of our
personal preferences or whether it deviates from the criteria by which we judge our approval and
disapproval.10
Austin's core methodology sought to offer an in-depth but entertaining examination of all laws.
His approach is best understood as a shining example of analytical philosophy, distinguished by
its painstaking distinctions but devoid of convincing arguments. Since much of the meta-
theoretical and justificatory work isn't stated directly in the text, modern readers must fill in the
gaps. When Austin does explain his approach and objectives, they are consistent with a
somewhat traditional one: he tried to dissect a law, taking into account its broadest interpretation,
into its essential and basic parts.”11 He defines a command as an expressed wish to do something,
coupled with the ability and willingness to impose a consequence (usually a negative one) if the
wish is not obeyed. Positive law, according to him, comprises commands issued by a sovereign
or their agents, distinguishing it from laws given by other authorities like God or employers. A
"sovereign" is a person or group that consistently receives obedience from most of the population
and doesn't habitually obey any other earthly authority. Austin believed that all independent
political societies inherently possess a sovereign.
Additionally, he categorically and firmly stated that Positive law ought to be differentiated from
"laws with a strong resemblance" (encompassing positive morality, laws of honor, international
law, customary law, and constitutional law) and "laws with a distant resemblance" (such as the
laws of physics)12. However, there are arguments that law itself is an intertwine of varying
moralistic concepts, it relates with even customary law 13 and historical14 perspective from
philosophers of the schools of thought. Also, Austin also included within “the province of
jurisprudence” certain “exceptions,” items which did not fit his criteria but which should

6
< [Link] retrieved on the 31 October, 2023.
7
Thomas Acquinas also substantiated this assertion, the mosaic law was well recognized.
8
Sovereign in this light was not properly expatiated by Austin, it remains unclear whether in a dictatorial regime or
a democratic system where there exit a separation of power, each organs has its responsibilities.
9
An intelligent being having control and vehement power over the less intelligent being. Failure to abide by the
command will incur sanction by the sovereign at the end.
10
Austin 1832: Lecture V, p. 157
11
Austin 1832: Lecture V, p. 117.
12
Austin 1832: Lecture I
13
Meanwhile, this is subjected to various test, the validity test to determine is whether it is worthy of best practice
in the modern society, when it is repugnant to natural justice, equity and good conscience or incompatible and
flagrantly against public policy, it will be left inoperable.
14
Von Savigny historical school of thought espoused justifiably on how law emanate from the spirit of people and
their consciousness, law grows with the people growth and has gained accepted usage and stability such that
when break will unleash punishment.

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nonetheless be studied with other “laws properly so called”: repealing laws, declarative laws, and
“imperfect laws”—laws prescribing action but without sanctions (a concept Austin ascribes to
“Roman [law] jurists”), this is when the inaccuracy of the scholar postulation set in15
Austin successfully divided law and legal restrictions from things like religion, morals,
conventions, and customary behaviors in the previously defined criteria. However, his notion of
"the province of jurisprudence" also excluded public international law, some aspects of
constitutional law, and customary law (unless the sovereign directly or indirectly integrated these
customs into law). For readers of today, Austin's theory presents a challenge just because of
these omissions.16
III. Overlap between Law and Morality
The connection between law and morality stood out as one of the primary topics extensively
discussed by legal scholars in the 19th century. The other two major areas of debate included the
essence of law and the interpretation of legal history, which often exhibited significant
intersections. Nevertheless, Jhering referred to this particular relationship as the "Cape Horn" of
jurisprudence. Anyone navigating through its challenges faced a substantial risk of encountering
a disastrous shipwreck.17 In English, there are concepts such as law, morality, and morals. It is
valuable to differentiate between "morality" to refer to a set of accepted behaviors and "morals"
to describe guidelines for conduct structured around principles as ideal frameworks.
similarly, the conventional morality pertains to a set of behaviors endorsed by the established
customs and habits of the community to which an individual belongs. Christian morality, on the
other hand, refers to behavior that aligns with the principles of Christianity, as approved by
Christians. Similarly, Confucian morality encompasses conduct that is sanctioned by adherents
of Confucianism, in accordance with the teachings of Confucius. 18In this formulation, "morality
would cease to be a mere concept and instead become a practical system." As legal experts
would explain, it would be considered "positive," contrasting with morals, which are "inherent"
and aligned with an ideal that may not always be put into practice or enforced through societal
influences. Moral frameworks tend to predominantly idealize the prevailing moral values of a
specific period and location.19.
Austin's command theory, his concept of sovereignty, his views on the relationship between law
and morality, and his perspectives on legal reasoning and judge-made law are now being
discussed,20 it is applicable in Nigeria but not in the absolute. In fact, no states have ever
absolutely applied it. Austin’s analysis, laws properly so-called, as distinguished from rules of
positive morality, are commands issued by the sovereign to the subjects, and that something is a

15
Austin 1832: Lecture I, p. 36
16
< [Link] retrieved on the 31st October,2023.
17
GEIST DES RMsISCHEN RECHTS (1 ed. 1854) §26, p. 48.
18
Lee, Morals, Morality, and Ethics: Suggested Terminology (1928) 38 INTERNAT. 3. oF ETHIcs, 451, 452-453. a I
CLARIC, ROMAN PRIVATE L
19
Id.
20
Id.

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command only if there is a sanction behind it 21 which is not free from controversy. The various
scholars of jurisprudence define law differently. The positivists define law as command backed
by sanction.
Additionally, because there are a lot of misunderstandings about how to define the concept of
law and how to interpret it, Professor Lloyd has expressed regret over the vast amount of legal
discourse that attempts to reach a definition of law that is universally accepted, but progress
toward this goal is still elusive. 22 However, many definitions of law are flawed due to their
narrow focus on specific aspects or characteristics of law, often neglecting or giving little
consideration to other important dimensions. Professor Bodenheimer astutely highlights that
when viewed from a broader perspective, law encompasses morality and various other elements
in this perspective: -23
The law is a large mansion with many halls, rooms, nooks and corners. It is extremely
hard to illuminate with a searchlight every room, nook and corner at the same time, and
this is especially true when the system of illumination, because of limitations of
technological knowledge and experience, is inadequate, at least imperfect.24
Therefore, the concept of law should not be limited to a strict legal framework devoid of moral
considerations. A meaningful and widely accepted definition of law should encompass
fundamental elements derived from various jurisprudential schools. These elements include the
positivists' emphasis on the certainty of the legal source and its coercive nature, the historical and
sociological proponents' focus on social relevance and acceptance, and the naturalists' belief that
law's essential component is its purpose, which involves justice, rationality, and the promotion of
the common good. The satisfaction derived from any legal enactment should not solely benefit
those in authority or the elite; rather, it should serve the collective interests of the entire
community. Austin's theories in the Nigerian context may be inadequate due to the unique social
constructs and conditioning present in Nigeria. 25
Be that as it may, the intricate and enduring philosophical and legal matter of the connection
between law and morality cannot be ignored. Although the degree of convergence between law
and morality differs among various legal systems and societies, several essential aspects must be
contemplated systematically to strengthen our argument regarding Nigeria and its operation.
Consequently, an exploration of this analysis is undeniably crucial, as outlined below:
Assuming a man is at the swimming pool swimming and because of his expertise in
swimming he could survive in the water, there is another young man standing bedside
him who could not swim, mistakenly, he falls into the swimming pool, there is no law that
says the expert swimmer should rescue the young man, but the influence of morality
could make him rescue him. For him disregarding the person and make him die does not
21
[Link]
BEEBB544875C513221E3E30304406BE0
22
3 Lloyd, Introdution to Jurisprudence.
23
id
24
Bodenheimer, Jurisprudence (Harvard University Press, 1974) p.163.
25
Opcit.

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 elicit any offence, but for humanity, he could help. This analogy expatiate on how the law
and morality can be inseparable in Nigeria.
Additionally, the customs and traditions which allows the killing of twin is against the
law of loral, so also, when the law regulate the bad procedures to kill life lawlessly in
that manner, posterity and preservation of life is encouraged.
On the flip now, the overlapping aspect of law will be examined systematically and plainly
accordingly:
a. Moral Foundations of Law: Many legal systems are influenced by moral principles and
values. The foundational principles of justice, fairness, and human rights often have
moral underpinnings. Laws are sometimes created to reflect and enforce commonly held
moral norms, such as prohibitions against murder, theft, and fraud.
b. Legal Moralism: Legal systems may, to varying degrees, enforce certain moral values.
This concept is known as legal moralism. For example, laws against obscenity and public
nudity can be seen as reflecting a society's moral standards.
c. Ethical Dilemmas: There can be situations where a conflict arises between a person's
individual moral beliefs and the requirements of the law. For instance, conscientious
objection, when individuals refuse to perform actions required by law due to moral
objections, raises complex ethical issues.
d. Cultural and Historical Variation: The relationship between law and morality can
differ significantly across cultures and time periods. What is considered moral in one
society may not be in another, leading to differences in legal systems.
e. Separation of Law and Morality: In some legal philosophies, there is an effort to
maintain a strict separation between law and morality. Legal positivism, for instance,
argues that laws are valid regardless of their moral content, and legal decisions should be
based on enacted laws rather than moral considerations.
f. Debate over the Role of Morality: Legal scholars and philosophers continue to debate
the extent to which moral considerations should influence the content and interpretation
of laws. Some argue that morality should play a more prominent role in shaping the legal
framework, while others emphasize the importance of legal neutrality and avoiding
excessive moralization of the law.
g. Legal Change and Moral Progress: Laws can change over time to reflect evolving
moral standards. For example, civil rights movements and changes in laws related to
issues like marriage equality and drug decriminalization often reflect shifting moral
perspectives.
h. Moral Limits on Law: Some argue that there are moral limits to what the law can or
should do. These limits are intended to protect individual rights, autonomy, and privacy,
preventing the law from becoming overly intrusive into personal moral decisions.
In general, the connection between law and morality is a dynamic and ever-changing
relationship. It encompasses intricate interactions between societal values, cultural norms, and
legal principles. The degree to which morality should shape and impact the law remains a
continuous subject of discussion and debate in the fields of philosophy and legal studies.

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Contrary to the notion that law is entirely separate from morality, this perspective leads to
ongoing scholarly discussions, a point exemplified by the enduring debates surrounding John
Austin's legal positivism. Thus, it is appropriate to assert that Nigeria has recognized the
drawbacks of strictly adhering to the command theory or legal positivism of John Austin, which
results in the Nigerian legal system embodying various structures and a pluralistic form of
positivism. Neither one concept dominates the other; instead, it involves a mixed approach that is
considered best practice worldwide.
IV. The Role of Law in Promoting Public Morality
Indeed, the law plays a crucial role in fostering and preserving public morality. A law that is
excessively severe and devoid of compassion resembles the chaos of the state of nature
characterized by rampant lawlessness. It is imperative to safeguard morality within a society, and
the following reasons highlight its significance and far-reaching consequences when overlooked.
In this examination, the law bears the responsibility of upholding the well-being of human
society by maintaining a reasonable level of order and public morality in this context.: -
1. Reflecting societal norms: A legal system that aligns with prevailing moral values
reflects the collective conscience of the society it serves. When laws are in harmony with
widely held moral beliefs, people are more likely to respect and comply with them. This
fosters a sense of legitimacy and trust in the legal system and there will not be
estrangement.
2. Providing a moral framework: far from john Austin argument, Laws can establish a
moral framework that helps guide individual and collective behavior. By codifying
certain values and principles, the legal system communicates what behaviors are
considered acceptable or unacceptable within a society. This helps shape and reinforce
moral values; law is not absolutely pure.
3. Upholding justice and fairness: Laws that are in tune with moral values help ensure
justice and fairness in society. When people perceive that the legal system is just and
equitable, it promotes trust and reduces social discord. A legal system that enforces
fairness can foster social cohesion by mitigating perceived inequalities and injustices.
4. Promoting accountability and encouraging civic participation: Laws aligned with
prevailing moral values hold individuals and institutions accountable for their actions.
This promotes personal responsibility and encourages ethical behavior. When people
know they will face consequences for immoral actions, they are more likely to act in
accordance with societal norms. Additionally, a legal system that reflects moral values
can encourage civic participation and engagement. People are more likely to be invested
in the legal and political processes when they believe that the laws are just and serve the
greater good. This engagement can lead to stronger social cohesion.
5. Resolving disputes peacefully: When laws align with moral values, they provide a
structured and peaceful means for resolving conflicts and disputes. This reduces the
likelihood of vigilantism and promotes social harmony by providing a legal recourse for
grievances.

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 6. Adapting to changing values: The legal system should be flexible enough to adapt to
evolving moral values. As societal norms change over time, the legal system should be
able to respond by updating or revising laws to remain aligned with the prevailing values.
Nonetheless, when viewed from the perspective of Nigeria, it is crucial to emphasize the link
between the legal system and social stability by promoting public morality and social cohesion.
In this context, law and morality can be likened to inseparable twins, as their striking similarity
indicates their intertwined roles, especially in the governance of Nigeria.
VI. Conclusion
In summary, it's evident from the preceding discussion that John Austin's idea of separating law
from morality has not found reasonable acceptance in its entirety anywhere in the world,
including Nigeria. In Nigeria, the legal system is comprehensive and maintains a connection
between law and morality. Furthermore, the earlier discussion makes it clear that customs,
traditions, religion, international treaties, and the legislative branch all appear to work together to
promote best practices in Nigeria. Ultimately, the debates regarding the extent to which the law
should refrain from enforcing certain moral standards, especially in diverse societies like
Nigeria, are unlikely to gain traction. In this regard, law and morality can effectively work
together to achieve a common goal.