Authored By: Abiola Rachael Kikelomo
AJAYI CROWTHER UNIVERSITY
Introduction
Florence being a law student, she found herelf settling a disagreement between her parents. Her father was disappointed that her mother had been invited to a police station without informing him and asked whether her conduct amounted to a crime. Florence explained that although her action might be morally questionable, it did not necessarily constitute a criminal offence. This story made me appreciate the important distinction between moral wrongdoing and legal wrongdoing.
Many people assume that every morally wrong act automatically amounts to a legal wrong. In reality, however, conduct regarded as dishonest, unfair, or socially unacceptable does not necessarily attract legal sanctions. Although morality may influence the development of law, moral disapproval alone cannot create criminal liability.
The Nigerian legal system clearly reflects this distinction. Section 36(12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that a person shall not be convicted of a criminal offence unless that offence is defined and the penalty prescribed in a written law. This constitutional safeguard underscores the principle that criminal liability cannot arise merely because conduct is regarded as immoral or contrary to societal expectations. Nevertheless, Nigerian law also recognises that moral values may influence legal reasoning where they have been incorporated into recognised legal principles such as public policy, natural justice, equity, and good conscience.
This article argues that although law and morality are conceptually distinct, they are not entirely disconnected. Rather, moral values become legally relevant only when they have been recognised by the legal system through constitutional provisions, legislation, judicial decisions, or established legal doctrines. The article therefore examines the distinction between law and morality and demonstrates how Nigerian law maintains the boundary between moral expectations and legally enforceable obligations while still allowing moral values to shape certain areas of the law.
The Distinction between Law and Morality
Law and morality are both important mechanisms for regulating human behaviour and maintaining order within society. Despite this common objective, they differ significantly in their source, authority, and method of enforcement. Appreciating this distinction is essential to understanding why conduct that is morally reprehensible does not necessarily attract legal consequences.
Law may be described as a body of rules recognised and enforced by the State through legally established institutions such as the courts. It creates legally binding rights and obligations, and its breach ordinarily attracts sanctions, including fines, damages, imprisonment, or other remedies prescribed by law. The authority of law is derived not merely from its moral content but from its recognition through the Constitution, legislation, judicial precedent, and other recognised sources of law.
Morality, on the other hand, consists of ethical standards that guide human conduct according to societal values, religious beliefs, cultural traditions, and individual conscience. Unlike law, moral rules are generally not enforced by the State. Their sanctions are usually social or personal, such as public criticism, social disapproval, loss of reputation, or feelings of guilt. Consequently, an individual may violate a moral obligation without necessarily incurring legal liability.
This distinction was strongly defended by H.L.A. Hart, a leading legal positivist. Hart argued that there is no necessary connection between law and morality. According to him, the validity of a legal rule depends upon its recognition within the legal system rather than upon its moral desirability. According to Hart, a rule does not become law simply because it is morally right, nor does it lose its legal status because it is morally objectionable. His theory therefore distinguishes legal validity from moral judgment. Nevertheless, Hart acknowledged that although law and morality are distinct, they may interact, as demonstrated in areas of Nigerian constitutional and customary law.
The Constitutional Boundary Between Moral Wrongdoing and Criminal Liability
One of the clearest demonstrations of the distinction between law and morality under Nigerian law is found in section 36(12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The provision states that no person shall be convicted of a criminal offence unless the offence is defined and the penalty prescribed in a written law. This constitutional guarantee embodies the long-established criminal law principle of nullum crimen sine lege, meaning there can be no crime without law.
Section 36(12) protects against arbitrary criminal liability by ensuring that no conduct is treated as a criminal offence unless it is defined and punishable under a written law. Criminal liability therefore depends on law, not moral disapproval.
The importance of this constitutional principle was reaffirmed by the Supreme Court in Chief Olabode George v Federal Republic of Nigeria. The Court emphasised that criminal liability must be founded upon recognised written law and that administrative directives, circulars, or executive instructions cannot create criminal offences where the Constitution requires otherwise. This decision reinforces the constitutional principle that criminal offences can only be created by recognised written law. Accordingly, judges cannot create criminal offences through judicial interpretation or personal moral views. Thus, while society may condemn certain conduct as immoral, criminal liability arises only where the conduct is recognised as an offence under written law.
Where Law and Morality Intersect in the Nigerian Legal System
Although law and morality are distinct, they sometimes intersect where moral values have been recognised by law. Thus, morality may influence judicial reasoning through principles such as public policy, natural justice, equity, and good conscience.
A clear example is the application of customary law. Nigerian courts have consistently held that customary law is enforceable only where it satisfies recognised legal requirements. Under the repugnancy doctrine, a custom will not be enforced if it is contrary to natural justice, equity, and good conscience or inconsistent with public policy. This demonstrates that moral values become legally relevant only when recognised by the legal system.
The Supreme Court’s decision in Agbai v Okogbue illustrates this principle. The Court reaffirmed that although customary law forms an important part of Nigeria’s legal system, it does not enjoy unlimited recognition. Every customary rule must satisfy recognised legal standards before it can be enforced by the courts. Consequently, customs that offend the principles of natural justice, equity, and good conscience may be declared unenforceable. The significance of this decision lies in the fact that the Court did not reject customary law merely because a particular custom appeared morally undesirable. Rather, it applied recognised legal principles which themselves embody values of justice and fairness.
A similar approach was adopted by the Supreme Court in Anekwe v Nweke. In that case, a customary practice denied a widow inheritance rights because she had no male child. The Court rejected the discriminatory custom, holding that it was inconsistent with natural justice, equity, and good conscience.The decision demonstrates that values such as equality, human dignity, and fairness may become legally enforceable where they are recognised by the legal system. It therefore reinforces the proposition that morality becomes legally relevant only after it has been incorporated into recognised legal principles.
An important lesson from these decisions is that Nigerian courts do not administer personal morality; they administer the law. Where legal principles expressly incorporate values associated with justice and fairness, judges may legitimately rely on those principles. However, where no legal basis exists, courts cannot substitute their personal moral convictions for established legal rules. Thus, the interaction between law and morality occurs through recognised legal principles rather than through individual moral preferences.
Critical Analysis: Drawing the Proper Boundary Between Law and Morality
The relationship between law and morality in Nigeria is neither one of complete separation nor complete identity. While the Constitution makes it clear that moral disapproval alone cannot create criminal liability, judicial decisions show that moral values may influence the law where they have been recognised by legal principles. This approach upholds the rule of law by ensuring that legal duties and criminal offences derive from recognised legal authority rather than personal moral opinions. Accordingly, morality may influence the development of law, but legal liability must always remain grounded in recognised legal authority.
Conclusion
Law and morality both regulate human conduct, but they are not the same. While morality may influence the development of law, criminal liability in Nigeria arises only from recognised legal authority. According to the discussion between Florence and her father, an act may be morally wrong without constituting a criminal offence. Unless a written law defines the conduct as an offence and prescribes a punishment, the courts cannot impose criminal sanctions. The proper boundary between law and morality therefore lies in legal recognition, a principle that preserves legal certainty, the rule of law, and the fair administration of justice.
Reference(S):
1 Constitution of the Federal Republic of Nigeria 1999 (as amended), s 36(12).
2 HLA Hart, The Concept of Law (3rd edn, Oxford University Press 2012).
3 Constitution of the Federal Republic of Nigeria 1999 (as amended), s 36(12).
4 Chief Olabode George v Federal Republic of Nigeria (2014) 5 NWLR (Pt 1399) 1.
5 Agbai v Okogbue (1991) 7 NWLR (Pt 204) 391.
6 Anekwe v Nweke (2014) 9 NWLR (Pt 1412) 393.
