LAW, LIBERTY AND MORALITY

Edwin N. Kimani*
Advocate of the High Court of Kenya, Member of the Law Society of Kenya and East Africa. P.O
Box 54668 – 00200 Nairobi
Table of Contents
LAW, LIBERTY AND MORALITY ........................................................................................................... 1
Introduction .................................................................................................................................................. 3
Liberty ........................................................................................................................................................... 4
Conceptualizing Liberty: Isaiah Berlin’s Positive and Negative Liberty ................................................... 5
Law and Liberty ......................................................................................................................................... 6
Liberty-Limiting Principles......................................................................................................................... 7
What extent should the law be used to limit liberty .............................................................................. 11
Morality....................................................................................................................................................... 12
Law and Morality Linkage ....................................................................................................................... 13
Nikolaĭ Mikhaĭlovich Korkunov............................................................................................................ 14
H. L. A. Hart ......................................................................................................................................... 15
Public Morality vs. Private Morality and the Law ................................................................................... 15
Wolfenden Report .............................................................................................................................. 16
Hart- Delvin Debate ............................................................................................................................ 18
Ronald Dworkin................................................................................................................................... 21
Prof. H.L.A Harts-Lon Fuller Debate .................................................................................................... 22
Laws and Morality: Intertwined or Mutually Exclusive ...................................................................... 22
Grudge Informer Case ......................................................................................................................... 22
Prof. HL.A Hart .................................................................................................................................... 23
Lon Fuller and Procedural Morality .................................................................................................... 24
Fullers Internal Morality of the law vs. Harts Minimum Content of natural law................................ 24
John Stuart Mill ................................................................................................................................... 26
Law and Morality: The Kenyan Perspective ............................................................................................ 27
The International Approach .................................................................................................................... 31
R v Penguin Books Ltd (“Lady Chatterley’s Lover”) (1961) ..................................................................... 33
Shaw v DPP [1962] AC 220 ...................................................................................................................... 33
Conclusion ............................................................................................................................................... 35
Introduction
The question of whether law ought to enforce morality has been an issue of philosophical debate

for ages.1 What should be the rightful limit to the sovereignty of the individual over himself?

Where does the authority of society begin? How much of human life should be assigned to

individuality, and how much to society?

To a large extent, ancient civilizations around the world based governance of their respective

societies on moral thresholds found in their respective religious doctrines. This is evidenced from

1
https://www.ibiblio.org/gaylaw/issue6/sylla.htm. Law, Morality and Sodomy. Accessed on 29th December 2017.
the early Abrahamic faiths, Far East nations whose law was founded on Buddhism, early African

empires such as Aksum and the then Puritan United Kingdom.

Liberty
Liberty is generally considered as a concept of political philosophy that identifies the condition

in which an individual has the ability to act according to his or her own will. Prof Harold Laski

defines liberty thus:-

“By liberty I mean the eager maintenance of that atmosphere in which men have the opportunity

to be their best selves”.2

Mill defines civil liberty as the limit that must be set on society’s power over each individual, 3

while T.H. Green describes it as a power to do or enjoy something that is worth doing or

enjoying in common with others.4

A layman may perceive Liberty to be the freedom to do anything he/she pleases. 5 However,

liberty may be conceived into two general perspectives; individualism and collective. Rawls in

defining justice conceptualized justice as maximum exercise of one’s choice and free will to the

highest compatible level with a like liberty. Consequently, individual liberty is Rawls first

principle of justice.

Appreciatively individuals may be “unfree” devoid of external interferences. In a community,

though individuals are free to do as they desire, limited capabilities conditions their free choice.

The state may therefore come in handy to assist the individuals to unfree themselves.

2
http://www.politicalsciencenotes.com/liberty/liberty-definition-nature-and-theories/787 Liberty: Definition,
Nature and Theories. Accessed on 8th January 2018.
3
https://www.utilitarianism.com/ol/one.html John Stuart Mill, On Liberty 1859. Accessed on 8th January 2018.
4
Note 3.
5
https://www.lawctopus.com/academike/law-liberty/ Law and Liberty – Antithetical to one another?
Conceptualizing Liberty: Isaiah Berlin’s Positive and Negative Liberty
Berlin opines that there exist two concepts of liberty. One is interested in determining the scope

of the individual’s or the groups free choice and secondly the source of interference or limitation

of the freedom in the Rawl’s “liberty compatible for all principle”. To the scope he calls it

negative liberty and to the source of limitations positive liberty.

In the negative notion of liberty, political liberty is connoted in terms of interference by other

human beings and not incapability due to natural processes devoid of human hand. If allowed to

curtail other people’s freedom, the strong men would dominate the weak ones. The law is

introduced as a timely intervention to limit the “interference” of other people’s freedom by other

human beings by limiting man’s free action. To what extent then should the law limit people’s

freedom? John Locke and Mill argue that there must be the minimum area of one’s individual

freedom below which the law shouldn’t encroach. This introduces the concept of private life and

public authority in limiting individual’s private life.

On to the positive liberty, man aspires to be the master of his own life. Agreeably, people’s

liberty is not absolute, for it must be compatible for all. But where does this justifiable

conditioning of the liberty originate? Naturally, isn’t human being a slave to nature or his own

uncontrolled passions? The 'positive' conception of freedom as self-mastery has, in fact, and as a

matter of history, of doctrine and of practice, lent itself more easily to this splitting of personality

into two: the transcendent, dominant controller, and the empirical bundle of desires and passions

to be disciplined and brought under control. May we not limit man’s will not to harm himself for

his own good?

Law and Liberty
Ralws, Mill and Locke form the strong opinion that that political liberty in the least is the ability

to do whatever he desires unobstructed by others from doing what he could otherwise do. The

contestation of whether the law is the giver, limiter and confiscator of liberty is well

documented. However, scholars converge one the role of law as a tool for restricting one’s

exercise liberty. Rawls’ liberty compatible for all, Mill’s harm principle and Hart’s refined harm

principle agree that law (public authority) may limit one’s freedom for collective social good or

even for one’s good. However they opine led by Mill that even when law is used to limit liberty,

there is the maximum it can limit beyond which it cannot go. Consequently, the two are not at

odds with one other; rather, they complement one another.6 Positivists opine that true liberty only

comes as a result of established law, and the only established law that exists is the law

established by the one and only Law-giver.7 Mill and other natural right based theorists would

however argue that liberty is inherent in human being and law comes to moderate for the sake of

societal harmonious living.

The Indian Constitution provides to its citizen Liberty through Article 21. The Kenyan

Constitution provides its citizens varied types of freedoms including speech and expression,

movement, assembly.

The relationship between law and liberty can be studied in the contextualized in governments.

Authoritarian regimes that do not reflect the public opinion are associated with liberty limitation

beyond Mill’s limitation minimum. In democracies, it is argued; their citizens are freer and tend

to support such a government. Liberty as a right finds itself at the heart of universalism-cultural

6
Note 3.
7
https://www.ligonier.org/learn/articles/liberty-vs-law/ Liberty vs. Law? Accessed on 10th January 2018.
relativism debate. However, it is a general consensus that a democratic system is a condition

precedent for the full enjoyment of individual liberty.8

Contextualizing the Marx economic substructure i.e. law may be misused to serve some quarters,

then it is very dangerous to let law provide, protect and limit liberty. Notably, absence of liberty

providing and protecting laws violation of the inherent liberty is common. However, given the

skepticism of Marx, Feminists, and Critical Legal thinkers on the neutrality, objectivity and

rationality of the law. Would we still trust the law to dictate the content, scope, limitation and

protection of individual’s freedom?

In contextualizing liberty and law, the individualism form of liberty prominent in the West and

the collectivism in Africa and Asia comes in question. In the United States courts promote and

uphold the liberty of individuals by removing the barriers to same-sex marriages in their

respective stages Goodridge v. Dept. of Public Health.9

Liberty-Limiting Principles
Law-Liberty scholars agree in no uncertain terms that liberty is not absolute but disagree on the

source and scope of the limitation. In in the interest of an individual or for harmonious living

among individuals, it is important that man freedom be limited so that the weak ones may not be

oppressed. In the Locke’s utopian state and Hobbes’ dystopia state, men possessing all the

freedom to protect their interests ended in creation of a chaotic society. The state, that functions

through law sets in and takes up some of the rights of individuals for every individual society

survival. But why limit this freedom? What are the justifications for legal restrictions on the

liberty?

1. Liberty/harm principle

8
Note 3.
9
798 N.E.2d 941 (Mass. 2003).
John Stuart Mill in his on his essay On Liberty stated the harm principle thus:-

The sole end for which mankind is warranted, individually or collectively, in

interfering with the liberty of action of any of their number is self-protection. The

only purpose for which power can be rightfully exercised over any member of a

civilized community, against his will, is to prevent harm to others. His own good,

either physical or mental, is not a sufficient warrant.

From the foregoing, Mills opines that the only purpose for which law can be rightfully exercised

over any member of a civilized community, against his will, is to prevent harm to others. The

law is limited in its function to the ‘self-defense’ of society, and is legitimately employed if an

individual’s action is threatening society in some way. An individual is not accountable to

10
society for his actions, in so far as these concern the interests of no person but himself.

Secondly, that in so far as such actions are prejudicial to the interests of others, the individual is

accountable, and may be subjected either to social or to legal punishments, if society is of

opinion that the one or the other is requisite for its protection.11 What Mill is in no uncertain

terms opposed to is that the law should also be limited to protecting people against others, not

against themselves.

If we may problematize Mill’s principle, the first leg on the principle is opposed to importation

collective /legal moralism into the law. Essentially, limitation of the law should not only be

because some other citizen is being prejudiced. Legal moralism is blind to purpose and scope.

According to Mill, limitation should be very specific; for protection of others not in a general

non-purposeful way. The second component of Mill’s principle is that he rejects paternalism i.e.

interference of an individual’s liberty for those person’s own good.

10
John Stuart Mill, On Liberty (J. W. Parker and Son 1859) Chapter 1
11
Ibid.
 2. Tolerance Principle

Lord Devlin, in his lecture The Enforcement of Morals formulated the tolerance test that requires

maximum tolerance of individual freedom that is consistent with the integrity of society.

According to Devlin, nothing should be punished by the law that does not lie beyond the limits

of tolerance. Factors that would be indicative that the tolerance limits were being breached

include a deep and real feeling of reprobation, disgust and indignation towards the conduct in

question.12

He further proposed that the standard to be used in gauging this feeling is that of a reasonable

man. He said thus:

“If a reasonable man believes that a practice is immoral and believes also-no matter

whether the belief is right or wrong, so be it that it is honest and dispassionate-that no right-

minded member of his society could think otherwise, then for the purpose of the law it is

immoral”.13

3. Offence principle

The principle is to the effect that the state’s restriction on someone’s liberty might be justified

to prevent offense to others. Joel Feinberg argues that appeal to the Offense Principle may

occasionally serve to justify state restrictions of individual liberty, but he insists on certain

stringent conditions being fulfilled before the offense in question merits restriction. He states that

weight must be given both sides i.e. the offended and offending parties in a particular case of

alleged offense to determine what the state’s role ought to be.”14 It is therefore interest balancing

act.

12
Patrick Devlin, The Enforcement of Morals (Oxford University Press 1965).
13
Ibid.
14
Joel Feinberg, Offense to Others (The Moral Limits of the Criminal Law, Volume Two) (Oxford: Oxford University
Press, 1985) p 26
There are four factors Feinberg considers on the part of those being offended. First, we must take

into account the “magnitude of the offense,”15 which includes its intensity, duration, and extent.

Second, the seriousness of the offence i.e. the more serious the offense the more difficult it

becomes for an offended person to avoid it. Third, offenses that are voluntarily incurred (or are

foreseen risks of actions one willingly takes) simply do not count as offenses for which coercive

legislation might be enacted. As Feinberg puts it, “If a mere sneeze causes a glass window to

break, we should blame the weakness or brittleness of the glass and not the sneeze.”16

There is conceptual difference between being offended and being harmed. The distinction is

however rather thin and problematic. Whereas “harm” entails the violation of a person’s rights

which involves a setback to that person’s interests17,“offense,” on the other hand, involves

conduct producing “unpleasant or uncomfortable experiences i.e. affronts to sense or sensibility,

disgust, shock, shame, embarrassment, annoyance, boredom, anger, fear, or humiliation etc. from

which one cannot escape without unreasonable inconvenience or even harm.”18 Being offended,

in other words, involves being subjected to a particular kind of nuisance:

A further distinction is that to be offended is simply to be in an offended mental state, of which

one is aware, whereas to be in a harmed state does not require that one be in any particular

mental state at all.19

4. Legal Paternalism

Legal paternalism is the view that the law should at least; require people to act against their will

and for their own good, in that way protecting them from the undesirable consequences of their

15
Ibid, p 35
16
Feinberg (Note 15)34
17
Feinberg (Note 15) x.
18
Feinberg (Note 15)5
19
David Shoemaker, ‘”Dirty Words” and the Offence Principle’ Journal of Law and Philosophy (2000)19, 545-584
own actions. 20 In Morality and the Law (1971), Dworkin claims that paternalism is justified only

when two conditions apply. Firstly, the paternalism must be intended to protect against irrational

propensities i.e. deficiencies of cognitive and emotional capacity and ignorance, both avoidable

and unavoidable. Secondly, to be justified, paternalistic intervention must be restricted to

decisions that are far-reaching, potentially dangerous, and irreversible.21 Dworkin claims that as

far as paternalism and law are concerned, it is the state’s responsibility to show exactly the

nature of the potential harm and the probability of its occurrence, and that the state should

interfere as little as possible consistent with the justification for the paternalistic interference.

What extent should the law be used to limit liberty

Generally, in our society, it is understood that people want to maximize their freedom and

autonomy. But this is not always possible, since one person or group’s attempt to maximize

freedom may interfere with others’ freedom. So to some extent there is need and justifications

for limiting another person’s freedom.22 Mill argues that politics is necessarily a struggle

between liberty and authority. Too much emphasis upon the former produces anarchy, while too

much of the latter results in tyranny. The balance between these two is necessary. He maintains

that liberty to pursue one’s own happiness is a fundamental good for all human beings and can

only be infringed upon if the exercise of one’s liberty harms other persons.23

Laws that interfere with traditional rights and freedoms are sometimes considered necessary. The

mere fact of interference will rarely be a sufficient ground of criticism.24

20
John Hospers, ‘Libertarianism and Legal Paternalism’ Journal of Libertarian Studies, Vol. IV. No. 3 (Summer 1980)
p 255-265 at 255
21
Gerald Dworkin, Morality , Harm and the Law.(Westview Press 1994)
22
http://www.arisaka.org/ethics02LLP.html Liberty Limiting Principles (LLP). Accessed on 10th January 2018.
23
http://www.talkativeman.com/john-stuart-mill-on-liberty/John Stuart Mill on Limitations to Individual Freedom.
24
https://www.alrc.gov.au/publications/justifying-limits-rights-and-freedoms Justifying limits on rights and
freedoms.
Important rights often clash with each other, so that some must necessarily give way, at least

partly, to others. Freedom of movement, for example, does not give a person unlimited access to

another person’s private property, and murderers must generally lose their liberty to protect the

lives and liberties of others. Individual rights and freedoms will also sometimes clash with a

broader public interest such as public health or safety, or national security.25

Accordingly, it is widely recognized that there are reasonable limits even to fundamental rights.

Only a handful of rights such as the right not be tortured are considered to be absolute.26

Government may not do some things, and must do others, even though the authorities are

persuaded that it is in the society’s interest (and perhaps even in the individual’s own interest) to

do otherwise; individual human rights cannot be sacrificed even for the good of the greater

number, even for the general good of all. But if human rights do not bow lightly to public

concerns, they may be sacrificed if countervailing societal interests are important enough, in

particular circumstances, for limited times and purposes, to the extent strictly necessary.27

Morality
Morality is the differentiation of intentions, decisions and actions between those that are

distinguished as proper and those that are not considered as such.28 It is a body of standards or

principles derived from a code of conduct from a particular philosophy, religion or culture, or it

can derive from a standard that a person believes should be universal. 29 Others view that it may

be equated with order and has as its object human actions that are ordered to one another

25
Ibid.
26
Article 25 of the Constitution.
27
Louis Henkin, The Age of Rights (Columbia University Press, 1990) 4, Jacqueline Okuta & another v Attorney
General & 2 others.
28
The Hellenistic Philosophers: Translations of the Principal Sources with Philosophical Commentary. 1. Cambridge:
Cambridge University Press. pp. 366–367.
29
Stanford University (14 March 2011). "The Definition of Morality". Stanford Encyclopedia of Philosophy. Stanford
University. http://plato.stanford.edu/entries/morality-definition/
 30
and to some end Morality is a set of rules for right conduct, a system used to modify and

regulate our behavior. It is a quality system in human acts by which we judge them right or

wrong, good or bad.31

Law and Morality Linkage

The overly contested statement is that conventional laws of a society are determined by the

moral beliefs of that society.32 The proponents of natural law believe that conventional laws are

valid if they meet certain standards of morality, whereas opponents of natural law, usually

referred to as legal positivists, do not believe in the validity of conventional laws based on

morality.33

There has not been much debate in law than the relationship between morality and the law.

Natural law theorist wants to derive the validity of the law from morality. Where does morality

come from and to what extent should morality limit the application of the law? According to

natural lawyers, what is good or bad is universal, unchanging and irreplaceable whether adhered

to or not. Aquinas opines that it is discoverable by natural reasoning of the man. Natural law is

essentially morality validity of the human law. The phrase unjust law is not law only supports the

argument that law must be just, and what is just depends on whether it adheres to moral values

and principles. Positivists through their separation thesis opine that law and morality are two

distinct concepts and law does not derive its authority from morality. However after the Nazi

regime atrocities, a new brand of natural law theorists emerge claiming there requires a

minimum content of law/inner morality of the law i.e. the law ought to have minimum moral

values.

30
‘Law and Morality” By Arthur Scheller Jr. Published on Masquette Law Review
31
Joseph Kizza, Ethical and Social Issues in the Information Age, Texts in Computer Science, Springer-Verlag London
Limited 2010 pg 26.
32
Fr. Austin Fagothey. Right and Reason, Second Edition. Tan Books and Publishers, Rockford, (1959.)
33
ibid.
Generally, it is argued that both morality and the legal system serve the purpose of keeping

society stable and secure.34 They are both used in making judgments about people’s actions and

such judgments are justifiable by reason.35

Although morality and the law seem to have a common purpose and the means to achieve the

stated purpose, the implementation of these means to achieve the purpose is different 36 and

because of these differences, it is correct to say that in any society not all laws are based on the

morality of that society.37

Nikolaĭ Mikhaĭlovich Korkunov

He asserts that the distinction between morals and law can be formulated very simply, in that

morality furnishes the criterion for the proper evaluation of our interests; law marks out the

limits within which they ought to be confined.38

The function of morality, he asserts, is to analyze out a criterion for the evaluation of our

interests while the function of law is to settle the principles of the reciprocal delimitation of one's

own and other people's interests. It is not difficult to show that from this fundamental distinction

between law and morals results the other differences between juridical and moral norms. 39 The

moral evaluation of our interests arises from our conscience. Their delimitation depends upon

34
Kizza (Note 31) 26
35
Kizza (Note 31) 26.
36
Ibid.
37
Kizza (Note 31) 27.
38
Nikolaĭ Mikhaĭlovich Korkunov, General Theory of Law, 2nd Edition, New York, the Macmillan Company. 1909. Pg
52.
39
Ibid.
exterior relations which are found established between the different persons under consideration

subject to law.40

H. L. A. Hart
Hart stated that law and morality are very close, though not necessarily related. He is deeply

sympathetic to what he calls "the core of good sense of natural law" and believes that law should

continually be subject to moral scrutiny.41 Hart refuses to find that morality is a necessary

condition of legal validity. Hart says that a legal system cannot lose its sanctity just because it

does not conform to certain moral ideals. Thus in this view, even the most politically and morally

atrocious governments, such as the Nazis, can make and enforce valid laws whether good law or

bad law it is still law. Hart, however, emphasized that for a legal system to be valid it must

contain a minimum moral content.42

Public Morality vs. Private Morality and the Law

Private morality entails private conduct of an individual that is not of concern to the society or

the government and thus does not warranty an intrusion.43 Public morality connotes to moral and

ethical standards enforced in a society, by law or social pressure, and applied to public life, to the

content of the media, and to conduct in public places. In it, we identify universality in certain

acts and arguably holds the society together, for we must agree on minimums upon which we

interact

What is the conception of enforceable public morality appropriate in a liberal society? John

Stuart Mill gave the classic liberal answer to this question in the terms of his harm principle.44

40
Kurkunov (Note 38) 53.
41
William C. Starr, Law and Morality in H.L.A. Hart's Legal Philosophy, 67 Marq. L. Rev. 673 (1984)
42
H.L.A Hart, Essays in Jurisprudence and Philosopy (Clarendon Press 1983).
43
The Law Dictionary Featuring Black's Law Dictionary Free Online Legal Dictionary 2nd Ed.
44
John Stuart. Mill, On Liberty, in The Philosophy of John Stuart Mill 185, 187-203, 271-319 (M. Cohen ed.1961).
He suggests that the only purpose for which power can be rightfully exercised over any member

of a civilized community, against his will, is to prevent harm to others. 45 His own good, either

physical or moral, is not a sufficient warrant.

Wolfenden Report
Male homosexuality was illegal in England under the Buggery Act of 153346. The 1885 Criminal

Law Amendment Act, made all homosexual acts illegal, even those carried out in private. After

World War II, prostitution and homosexual related arrests and prosecutions in London was on

the rise and high-profile cases proliferated in the media by the early 1950s47.

One such famous trial was that of Alan Turing the cryptographer who helped to break the

German Enigma code. He was victimized for his homosexuality. Charged with 'gross indecency',

he was forced to choose between prison or hormone treatment.

In 1954 Winston Churchill’s Conservative government began debating the need to reform laws

relating to sexual offences in order to protect public morality and prevent further protrusion of

perverse homosexual behaviour throughout British society.

The same year the Welfenden committee named after its, leader Lord Wolfenden was

commissioned in order to assess the requirements for law reform. The committee consisted of 15

members (3 women and 12 men). It sat for three years collating information to inform its

recommendations.

What was particularly important was its observation on the function of criminal law thus:

The function of the criminal law, as we see it, is to preserve public order and

decency, to protect the citizen from what is offensive or injurious, and to provide

safeguards against exploitation and corruption of others….particularly the

45
Michael Lacewing, Mill’s ‘harm principle, Routledge, Taylor & Francis Group.
46
http://www.bl.uk/learning/timeline/item107413.html. Accessed on 7th January 2018.
47
National Archives Cabinet Papers CAB/129/66; CAB 128/27
 specially vulnerable, the young, weak and inexperienced…. It is not, in our view,

the function of the law to intervene in the private lives of citizens, or to seek to

enforce any particular pattern of behaviour.

In justifying this function of the law the report led:

The importance which society and the law ought to give to individual freedom of

choice and action in matter of private morality. Unless deliberate attempt is to be

made by society, acting through the agency of the law, to equate the sphere of

crime with that of sin, there must remain a realm of private morality which is, in

brief and crude terms, not the law’s business.

The Committee stated that in its view the function of the law in regard to sexual behaviour was

threefold: first, to preserve public order and decency secondly, to protect the citizen from what is

offensive and injurious; and, thirdly, to provide sufficient safeguards against exploitation and

corruption48.

Some of the Recommendations on Homosexuality49

 Homosexual behaviour between consenting adults in private be no longer a criminal offence.

 Questions relating to “consent” and “in private” be decided by the same criteria as apply in

the case of heterosexual acts between adults.

 That the age of adulthood for the purposes of the proposed change in the law be fixed at

twenty-one.

 The law relating to living on the earnings of prostitution be applied to the earnings of male as

well as female prostitution.

48
http://hansard.millbanksystems.com/commons/1958/nov/26/homosexual-offences-and-prostitution. Accessed
on 7th January 2018.
49
Wolfenden Report, Summary of Recommendations
http://www.bl.uk/learning/timeline/large107413.html accessed on 7th January 2018.
The committee recommended increased penalties for soliciting by street prostitutes and it

recommended making male prostitution illegal, proposals that were adopted into law in 1959.50

The recommendations by the committee sparked the debate on Public vs private morality and

regulation by the state. That is, how far the law and the compulsion of the law should seek to

regulate the behaviour of individuals and whether there is a sphere which is proper to leave to the

dictates of the individual conscience.51

The Wolfenden Report spurred public debate and eventually led to a change in the laws of

England in the 1960s. It highlights the importance of understanding the role of the state in

regulating our private lives.

Hart- Delvin Debate

Delvin

On the report, Lord Devlin’s take was that it is not possible to set theoretical limits to the power

of the State to legislate against immorality. Devlin appealed to the idea of society's "moral

fabric." He argued that the criminal law must respect and reinforce the moral norms of society in

order to keep social order from unravelling.52

Devlin’s view was that morals laws are justified to protect society against the disintegrating

effects of actions that undermine the morality of a society.53

He asserted that Legislation against immorality is not only permissible but necessary to prevent

the disintegration of society, in the same way that society may protect itself from subversive

activities by outlawing treason.

50
http://sti.bmj.com/content/sextrans/33/4/205.full.pdf accessed on 7th January 2018.
51
http://hansard.millbanksystems.com/commons/1958/nov/26/homosexual-offences-and-prostitution. Accessed
on 7th January 2018.
52
https://sixthformlaw.info/01_modules/other_material/law_and_morality/08_hart_devlin.htm. Accessed on 7th
January 2018.
53
https://ais.ku.edu.tr/course/22257/Hart%20Devlin%20Debate.doc accessed on 7th January 2018.
He asserts that Privacy can be balanced against the public interest in the moral order so that even

private consensual conduct can be prohibited.

Delvin opposed the report in three prongs, first consent could not suffice as a ground for

removing a matter from public morality to private morality hence escape of law regulation. If

adults would practice homosexuality in private based on consent, how then would you then

prevent suicide? In very many cases, the society abhorred some acts, whether individuals

consented to it or not for ‘it is an offence against society….there are certain standards of

behaviour or moral principles which society requires to be observed; and the breach of them is an

offence not merely against the person who is injured but against society as a whole’.

Secondly, Delvin opines that society should has the right to regulate morality of the individuals.

Why? Society is made up of community of ideas, political or moral. These ideas are the

minimum which a society sets as the foundations that they agree to be slaves to as to coexist. He

gives the example of the marriage, although it is between individuals, its conceptualization is per

the societal dictates. Once the social meaning of marriage is removed, there is no marriage

institution. As such, because conceptualization of issues is a shared community of ideas, the law

should be allowed to regulate individuals matter.

Third, Delvin justifies why law should be used to enforce public morality. He argues thus:

…if society has the right to make a judgment and has it on the basis that a recognized morality is

necessary to society as, say, a recognized government, then society may use the law to preserve

morality in the same way as it uses it to safeguard anything else that is essential to its existence.

If therefore the first proposition is securely established with all its implications, society has a

prima facie right to legislate against immorality as such.

A government he argues, is like morality and immorality is like treason. A government is

necessary for the very existence of the society. Because a government is good for the society, a

treason attempt is against the good of the society and as such becomes the concern of the society.

Similarly morality is good for existence of the society and immorality though conducted by an

individual threatens the very existence of the society.

Lord Devlin posits that public morality strengthens the society and therefore it is the primary role

of law to maintain this public morality. He argues that the society has a right to protect its own

existence, and that it also has the right to follow its own moral convictions in defending its social

environment from change it opposes.54

In what circumstances should the law/state power enforce public morality? What morals should

be outlawed depends on what a reasonable man feels should be outlawed. Lord Delvin

formulated guidelines to guide the legislature when legislating on morality. First, nothing should

be punished by law that does not lie beyond the limits of tolerance (tolerance theory). Secondly,

Laws should be slow in matters of moral. The human mind always needs greater freedom of

thought. After a time the mind can become accustomed to an action and relaxed. The feeling of

society or its moral standard on a certain matter is different from generation to generation. Thus

since tolerance can be shifted soon, the legislature shall act slowly. Third, privacy should be

respected to the highest possible extent.

Hart

H. L. A. Hart disputed Devlin's thesis saying that it assumes that immorality jeopardizes society,

when in fact there is no evidence of that proposition. While Hart conceded that some shared

54
Ronald M Dworkin., “Lord Devlin and the Enforcement of Morals” (1966). Faculty Scholarship Series. Paper 3611.
http://digitalcommons.law.yale.edu/fss_papers/3611
morality is essential to the existence of society he questioned Devlin's leap from there to the

proposition that a change in society's morality is tantamount to destroying it.

Hart developed Mill’s harm principle and argued that the society has the right to enforce

morality not for the sake of enforcing societal morals but for the sake of protection of the agent’s

good. While Mill did not agree to enforcement of morality for the benefit of the particular

individual Hart allowed it. He was opposed to collective enforcement of social morals as Delvin

has argued.

Hart succeeded in differentiating enforcement of morality because it disturbs public decency for

instance prostitution in public. Enforcement of morality simply becomes it distressed those who

knew it was happening was no good reason for enforcing morality. As such, homosexuality in

private should be legalized.

Hart asserts that society is equal to its morality because that implies that the morality of a society

can't change, or rather that if it does one society is actually disappearing, and being replaced by

another. According to Hart, Devlin's argument amounts to an assertion that law should preserve

existing morality, not that legal enforcement of morality is a good in and of itself.

Ronald Dworkin
Dworkin suggests that we should abandon the Hart-Devlin debate and concentrate of Liberties.

If a behaviour is a Basic Liberty (like sex), this should never be taken away, even if someone has

a different way of 'doing' sex; e.g. R v Brown.55 General liberties could be restricted if they

cause harm. But, it is not clear how you tell the difference between a basic and a general liberty?

Dworkin Vs Hart on Law and Morality

Dworkin Hart

55
[1993] 2 All ER 75 House of Lords.
Dworkin argues that in a legal system there Hart holds that law is an instrument of social control.

are other things besides rules, for he says that This means that the rules of law must satisfy certain

a Legal system cannot be conceived merely as conditions if they are to properly achieve this goal.

a code of rules.

Dworkin says that a judge has a duty to appeal Hart’s view that the judges have the discretion to create

to certain principles and not to others on the new legal rules through extra legal standards when the

appropriate occasions and hence involves existing law is not ascertainable and provides no

discretion in a weak sense. guidance to the judge to apply the law to certain

situation.

Dworkin are united in agreement with Mill and Hart that it is not a legitimate function of the

state to punish conduct simply on the grounds that it is immoral. 56 Immorality is therefore not

illegality.

Prof. H.L.A Harts-Lon Fuller Debate

Laws and Morality: Intertwined or Mutually Exclusive?

Grudge Informer Case57

A German Court in 1949, after the Second World War was faced with a case where a woman

was prosecuted for the offence of illegally depriving the husband of his liberty a crime

punishable under the 1871 German Code and which had remained in force during the Nazi

Regime. In 1944, she had denounced her husband to Hitler authorities for insulting remarks

against the Nazi Regime Leader; Hitler. Under the Nazi Regime it was illegal to make such

56
Joel Feinberg, The Moral Limits of the Criminal Law: Harmless Wrongdoing 173-75 (1988); Thomas Nagel,
Equality and Partiality 166 (1991); Ronald Dworkin, Taking Rights Seriously 240-58 (1977).
57
David Dyzenhaus. "The grudge informer case revisited." NYUL Rev. 83 (2008): 1000.
remarks though no citizen was under a duty to report such an incident to the state. The husband

was found guilty and sentenced to death but was never executed.

In her defense, she argued that she acted according to the law. The Court of Appeal, despite the

fact that the husband had been convicted by a Court of Law found her guilty because “the

statutes were contrary to sound conscience and sense of justice of all decent human beings”. This

rationale was followed by many other courts in post Hitler regime. The decision was birth to

revival of the natural law.

Hart argued that the Courts were wrong in convicting the woman while the Lon Fuller argued

that the actions of the courts in convicting her could have been justified.

Prof. HL.A Hart

The conception of laws as they are should to be distinguished from what they should be. Law,

according to Hart, did not cease being such due to moral content. In his separation thesis, he

argued that a legislation properly passed by the lawful authority remains valid, its moral content

notwithstanding until it is denounced by the same authority.58 It is thus possible, in Hart’s eyes,

to study and apply law in a descriptive sense (how people do in fact behave), rather than a

normative sense (that being how people should behave).

The German Code remained in force through the Nazi Regime and as such, the woman shouldn’t

have been convicted due to moral criticism of that law. A legal system to him can function

correctly without justice and moral questions. However, he engaged in the debate whether a law

that is not just could be followed by the people and on what basis.

58
Nicola Lacey. "Philosophy, Political Morality, and History: Explaining the Enduring Resonance of the Hart-Fuller
Debate." NYUL Rev. 83 (2008): 1059.
Lon Fuller and Procedural Morality
Fuller on the other hand maintained that law and morality could not be smartly classified as

mutually exclusive of each other and as such, the German Code lacking in morals was no law at

all. In Fuller’s eyes, the Nazi system and its rules were not ‘legal’ or ‘laws’ at all, for they served

only as an instrument of imposing and upholding a tyrannical regime.59 Fuller’s notion of

morality plays on the transparency and consistency of a law-making process, with no laws

explicitly targeting a sect of society and thus coincide with ‘natural law’ principles (like

expressed generality and operating prospectively.)

Fullers Internal Morality of the law vs. Harts Minimum Content of natural law
Fuller defines the law as a particular way of achieving order by subjecting the government of the

rules and these rules and norms are built into the legal procedures, they are intrinsically

purposive and hence they are value (moral content).60 Fuller presents the case of the King Rex

and why his Kingdom failure due to lack of the eight principles in his laws.

Fuller formulates the internal morality of the law consisting of eight principles and that any

system that does not contain all the eight principles is not law.

The principles that he called the “inner morality of the law” are:-

a) First, laws should be existent and should be expressed in general terms. Such laws, he

argued always the courts to find solutions in the.;

b) Secondly, laws should be promulgated and made public. These prevents the situation

where people remain unaware of the same very laws that ought to guide them;

59
, Peter P Nicholson. "The internal morality of law: Fuller and his critics." Ethics 84, no. 4 (1974): 307-326.
60
James C. Ketchen. "Revisiting Fuller's Critique of Hart: Managerial Control and the Pathology of Legal Systems:
The Hart-Weber Nexus." The University of Toronto Law Journal 53, no. 1 (2003): 1-35.
 c) Third, the laws must be prospective and set out in advance. No punishment if the laws

did not exist. If there is intended retrogressive application of the law, that should be

explicitly stated;

d) The law must be clear and concise and devoid of any ambiguity both in interpretation and

application. They must not be obscure, incoherent to the extent of making legality

unattainable.

e) Laws should be coherent, harmonious and not contradictory in nature. One principle

should supplement each other or lead to another and at no time should principles be

conflicting.

f) The laws must be capable of being implemented or applied. They should be capable of

fulfilling by human beings.

g) Laws should be consistent over a period of time. They should not keep changing rapidly

hence producing a stable expectation of what is required of citizens. However, laws can

be changed to meet the imperatives of the day.

h) Congruence. The laws must be declared by an official action and declared the rule.

These principles are intrinsic and compliance with them lead to substantive justice, if any is

absent in a legal system, it becomes illegal and the degree to which it adheres to counts as a valid

law. However, a law could adhere to these principles but still remain unjust.61

Prof Harts escapes the morality of the law question by postulating problems that mankind is

faced with and hence any law must try to solve them in order to qualify being a valid law. They

are:-

61
Charles Covell. The Defence of Natural Law: A Study of the Ideas of Law and Justice in the Writings of Lon L.
Fuller, Michael Oakeshot, FA Hayek, Ronald Dworkin and John Finnis. Springer, 2016
 a. Human Vulnerability. Naturally human beings are vulnerable to circumstances beyond

their control including from other human beings. Hence, law should protect them against

these natural occurrences.

b. Approximate equality. Human beings are approximately equal and hence a risk to each

other. Laws should effect this equality.

c. Limited Resources. Naturally, resources available to human being are limited. Laws

should therefore find a way of balancing resource distribution.

d. Limited Altruisms. We are born selfish and the law should find a cure to this problem.

e. Limited understanding and strength of will.

These five realities are what any law should aim at addressing for it to be valid in the society.

Although Harts avoids using the word morality, his “human problems” that a law must address

law would have to import morality to solve them.

John Stuart Mill

John Stuart Mill argued as already mentioned, that the only purpose for which power can be

rightfully exercised over any member of a civilized community, against his will, is to prevent

harm to others.62 His own good, either physical or moral, is not a sufficient warrant. This

principle however is not universally accepted within the philosophical community and certainly

is not applied in the real world.

Mill writes that individuals must not injure those interests of other people that should be

considered rights. Finally, individuals may be censured by opinion, though not by law, for

harming others while not violating their rights.

62
Michael Lacewing, Mill’s ‘harm principle, Routledge, Taylor & Francis Group.
He says the society has jurisdiction over any aspect of human behavior that affects prejudicially

the interests of others. However, society does not have an interest in those aspects of life that

affect no one but the person acting, or only affects people by their consent. Mill writes that such

behavior should be both legally permitted and socially accepted.

Mill however, maintains that people do not have the right to express moral reprobation, and they

should not try to make the person uncomfortable.63

Law and Morality: The Kenyan Perspective

The approach in Kenya can be seen to be similar to Lord Devlin’s view on the Wolfenden Report

that society is synonymous with its morals at any given time, and they are essential to the

existence of society. Prohibition of acts such as abortion, bestiality, homosexuality, lesbianism

and abortion incorporates the concept of public and private morality.

During the Constitution Review process that culminated to Constitution of Kenya, 2010 marriage

and abortion attracted debate based on moral views as One main debate was on abortion that led
64
to Article 26(2) of the Constitution of Kenya 2010 that expressly states that life begins at

conception and Article 26(4) specifically prohibits abortion making an illegal act. (Gay in the

Constitutional Review)

The Penal Code also criminalises abortion under Section 158 and 160.

The Penal Code under Chapter XV65 outlines offences against Morality. Outlined below are

manifestation of the extreme moral content of Kenyan law.

Section 153 (1) of the Penal Code criminalises the act of a man or woman living on the

proceeds of prostitution. It is apparent that the Code does not outlaw prostitution which begs the

63
http://www.sparknotes.com/philosophy/onliberty/section5.rhtml Of the Limits to the Authority of Society over
the Individual. Accessed on 7th January 2017
64
The Kenyan Constitution 2010
65
Cap 63 Laws of Kenya, Revised Edition 2009 (2008)
question why living on the earnings of Prostitution is illegal yet the act of prostitution in itself is

neither legal nor illegal. While Delvin arguments agree with the outlawing, Hart would only

approve the outlawing to the extent that prostitution is carried in public hence offending public

decency but should not be concern of the law if it’s done private for it only distresses some

people.

Section 65 of the Penal Code on Indecent practices between males provides that any male

person who, whether in public or private, is guilty of a felony and is liable to imprisonment for

five years. This section denies individuals private morality which is not the business of the law

and goes against the recommendations of the Welfendon Report (There are two cases (Eric Gitari

and gay’s organization, discrimination)

The provisions of section 182(1) (f) of the Penal Code are that “every person who in any public

place solicits for immoral purposes; shall be deemed idle and disorderly persons, and are guilty

of a misdemeanor and are liable for the first offence to imprisonment for one month or to a fine

not exceeding one hundred shillings, or to both and for every subsequent offence to

imprisonment for one year.

The Children Act No.8 of 2001 at section 158(3) (c) denies a homosexual the chance to apply

andbe allowed to adopt a child probably because of the child’s best in interest as per as his moral

wellbeing is concerned.

It is also noteworthy that the absolute insistence on the need to protect traditional values is

indeed an affront to the provisions of article 27 of the Constitution. This is particularly in regards

to the right against discrimination on any ground and the right to equality before the law and

equal protection and benefit of the law. In regards to homosexuals being denied legal status to

adopt children, they have technically been denied equal benefit and protection of the
law66. Section 27 of the Criminal Procedure Code provides that search of a woman must be by

another woman with strict regards to decency. However, there is no such provision on their male

counterparts and hence it can be argued that such stipulations are based on moral principles that

women should be decent and be dealt with strict adherence to decency.

Section 36 of the Advocates Act Cap 16 prohibits an advocate from undercutting which basically

means accepting remunerations below those prescribed under the Act. It is an offence for an

advocate to charge for legal services less than what is in the remuneration order. Section 37 goes

further to state that an advocate is also not allowed to share profits with an unqualified person.

What type of philosophy informs this kind of proviso?

In the case of Stephen Muthee Wakuthiye –Vs- Republic67, the appellant was charged and

convicted of under Section 162 (b) of the Penal Code for having carnal knowledge of an animal

namely a cow. This is like the case where eleven women and a Swedish national were charged in

a Mombasa court for engaging in bestiality in a private apartment.(We need to contextualize,

who speaks for the animal?)

The Bill of Rights under the Constitution approach also adopts Stuart Mills harm principle, only

limiting such rights if they cause harm to others. Article 24(d) expressly limits fundamental

rights and freedoms to the extent where their enjoyment affects those of others. However,

Article 31 of the Constitution protects privacy, the question is whether, given the foregoing does

this extend to private morality.

As regards the neutral principle, our courts have been varied in their application of the neutral

principle and legal realism in decision making. For instance, in CK –Vs- Board of Directors of

66
Amos Lokaii, The Place of Morality in Kenyan Law
67
(2013)eKLR
R. School68, Justice Mumbi Ngugi declared that it was not discriminatory for the school to

disallow dreadlocks based on their Christian values and norms.

Issues of surrogacy and IVF are relatively new in Kenya and society still frowns at them. The

existing laws are silent on how such matters should be dealt with, as has been realised in the case

of JLN & 2 Others –Vs- Director of children services & 4 others69 in which case the Children’s

court ordered that the baby be released from the children’s home to the birth mother’s custody.

In the case of R -Vs- Jackson Namunya Tali70 a Kenyan Court convicted a nurse with murder

under Section 206 of the Penal Code for assisting a woman to get an abortion which killed her.

The case of Kiplagat Korir Vs David Kipngeno Mutai71 the court held that the Kipsigis

Customary Law was repugnant to justice and morality when it required a man who had been

separated from his deceased wife for thirty - one years to bury her upon her death.

Kenya has been non-committal in freedom and rights of Lesbian, Gay Bisexual and Transgender

(LBTI) and the Constitution impliedly outlaws homosexual marriages under Article 45(2). An

application by the National Gay and Lesbian Human Rights Commission’s (NGLHRC) to

register their community was denied in 2013 because the association was “unacceptable”.

However in Eric Gitari vs. NGO Board & 4 Others72 the Petitioner wished to incorporate an

NGO whose purpose would seek to address the violence and human rights abuses suffered by

gay and lesbian people, which the NGO board declined to incorporate. The Court stated that the

petitioner is entitled to exercise his constitutionally guaranteed freedom to associate by being

able to form an association and an order of Mandamus issued directing the Board to strictly

comply with its constitutional duty under Article 27 and 36 of the Constitution.

68
Petition No. 450 of 2014
69
High Court Constitutional and Human Rights Division Petition No. 78 of 2014 (2014) eKLR.
70
High Court Criminal Case No. 75 of 2009
71
(2006) eKLR.
72
(2015) eKLR
The enforcement of the moral content of the law as far as the Constitution in Chapter Six on

leadership and integrity, Public Officers Ethics Act 2003 and Integrity Act 2012 are concerned

was demonstrated in the case of Benson Riitho Mureithi v J. W. Wakhungu & 2 others73 where

the court quashed the appointment of Ferdinand Waititu as the chairperson of the Athi Water

Services Board on the basis that the Cabinet Secretary for the Ministry of Environment, Water

and Natural Resources, did not take into account the competence, suitability and integrity of the

appointee

Kenya has made great strides in its Constitution that adopts a liberal approach in guaranteeing

fundamental rights and freedoms to some extent. However, practice is largely guided by what

has been viewed to be morally acceptable in society as demonstrated by continued existence of

laws such as the Penal Code that criminalise actions viewed to be immoral whether or not

committed in private and judicial interpretation that is guided by morals. Kenya has adopted

Devlin’s debate as well as aspects of the harm principle by Stuart Mill. Moving forward, Kenya

must adopt a liberal approach consistent with International Human Rights standards.

The International Approach

1. International Law and Morality

According to Hart, international affairs are governed by three normative orders being law,

morality and courtesy while religion is usually disregarded.74 The question being asked is

whether it is at all possible to act morally in international relations? And whether morally

binding agreements be created internationally? 75 It is observed that generally the relationship

between law and morality in the international sphere is complex especially in relation to morally

73
(2014)eKLR
74
HLA Hart, Law Liberty and Morality 141
75
Ibid, 144
binding agreements which equates the states as moral persons who are regarded as moral agents

with moral personality for example, Woodrow Wilson informed members of the US senate that

although the provisions of the Versailles treaty were not legally binding, the same were morally

binding.76

Morality for instance may be appreciated in the Principle of Jus Cogens which is an

internationally accepted concept that designates norms/moral principles of the law which no

derogation is permitted. It has an anchorage in natural law and as such frequently viewed as a set

of superior norms sanctioning fundamental values that constrain states objectively rather than

voluntarily. It is recognized in positive international law as a sign of the international legal

order’s moralization and maturity77.

Morality though normative governs the everyday behavior of a state’s citizens in the same breath

it has been observed that states may be bound by moral prescriptions for instance the Internal

Court of Justice in its advisory opinion on the Reservations to the Genocide Convention

indicated that the principles underlying the convention are provisions which are recognized as

binding states even without any conventional obligation which is interpreted to mean that

Genocide was already prohibited under customary internal law.78

The following notable cases demonstrates how other jurisdiction have approached the issue of

liberty, morality and the law generally:

76
Ibid 145
77
Anne Lagerwall ‘Jus Cogens’, 2017; Carnegie Endowment for International Peace. The Concept of Jus Cogens in
Public International Law Papers and Proceedings. Geneva, Switzerland, 1967; Frowein, Jochen A. “Ius cogens.” In
Max Planck Encyclopedia of Public International Law. Edited by Rüdiger Wolfrum. Oxford: Oxford University Press,
2013.
78
Ibid 146
R v Penguin Books Ltd (“Lady Chatterley’s Lover”) (1961)
'Lady Chatterley’s Lover' is a book by D.H. Lawrence, which was published by Penguin Books

in 1960. The book was described as obscene, as the story contained many sex scenes as well as

repeated use of what newspapers delicately termed ‘four-letter words.’ The case was a test of the

new obscenity laws, which were passed in 1959. The laws stated that something could avoid

being prosecuted for obscenity if the material contained some artistic merit.

Accusers believed that sexual intercourse was at the ‘core and heart’ of the book, while the

defendants, Penguin Books, maintained that the book was an artistic discussion of many issues,

and not purely a romp. The chief prosecutor, Mervyn Griffiths-Jones, caused controversy when

he told the court it was not the kind of book ‘you would like your wife or servants to read.’

The defence called witnesses, including many eminent literary critics, who stated that Lawrence

was sincere in his writing, and that it was important for the jury to look deeply at the text.

However, the prosecution and indeed the judge pointed out that in this case more was required. It

had to be demonstrated to the jury not just that a literature student or academic could get more

than a cheap thrill out of Lawrence’s book, but that the average layman would have a similar

understanding of it.

The jury, having read the book, decided that Penguin Books were not guilty. Apparently the

decision was greeted by cheers in the courtroom, and Penguin Books later showed their gratitude

by publishing the second version of ‘Lady Chatterley’s Lover’ with a dedication to the jury at the

beginning.

Shaw v DPP [1962] AC 220

The appellant in this case published a ‘ladies directory’ which listed contact details of prostitutes,

the services they offered and nude pictures. He charged the prostitutes a fee for inclusion and
also sold the directory for a fee. He was later on convicted of conspiracy to corrupt public

morals, living on the earnings of prostitution and an offence under the Obscene Publications Act

1959.

The appellant appealed on the grounds that no such offence of conspiracy to corrupt the public

morals existed. The appeal was dismissed. The Judge Viscount Simonds held that the Courts

have a residual power to enforce the supreme and fundamental purpose of the law, to conserve

not only the safety and order but also the moral welfare of the state, and it’s the duty of the

judges to guard it against attacks which may be the more insidious because they are novel and

unprepared for. He further stated that the law must be related to the changing standards of life,

not yielding to every shifting impulse of the popular will but having regard to fundamental

assessments of human values and the purposes of society.

2. Liberty and international law

International law has been likened to the state of nature where states unite by enacting mutual

treaties and conventions for mutual benefits such as peace, security and preserve its sovereignty.

Sovereignty is equated to liberty in that where states grants its citizen’s liberty, the international

community grant each other sovereignty79. At a conference in Moscow in the year 1943, a

proposal for an international organization was made based on the principle of sovereign equality

of all peace loving states and open to all nations for the maintenance of international peace and

security.80

79
Aaron Tanyhill, ‘ International law: liberty, equality and morality’ (Academia, 31 March 2017 )
<http://www.academia.edu/33261979/international_Law_-_Equality_Liberty_and _Morality> accessed 6 January
2018
80
Hans Kelsen, ‘The Principles of Sovereign Equality of States as a Basis for International Organization’ (1944), The
Yale Journal Vol 53 <http://www.jstor.org/stable/792798 > accessed on 6 January 2018
Conclusion
To the extent that the legal system is perceived as promoting justice, people will be more likely

to comply with law. Compliance can mean doing what is required by law such as paying taxes,

or it can mean refraining from prohibited acts like discriminatory employment decisions or

vigilante violence against wrongdoers.81 In general, when the law imposes obligations and

punishment in concordance with general intuitions about justice, then people are more likely to

view the legal system as a legitimate and reliable source of morality. Individual cases decided

consistently with lay intuitions of justice reinforce the notion that the law is a source of moral

guidance.82 Discrete laws that reflect the community’s sense of justice will enhance the ability of

the law to gain compliance in people’s everyday lives, in areas unrelated to the law in question.

Results have suggested that there are limits to authorities’ ability to gain citizen cooperation and

compliance with rules when outcomes are inconsistent with people’s moral standards.83 The

perceived legitimacy of the law can be undercut, and compliance undermined, when the law fails

to comport with citizens’ intuitions of justice.84 Some individuals have a strong moral investment

in either permitting or prohibiting abortion, and for them abortion laws that permit immoral

outcomes can prompt strident protests and even vigilante action. People’s intuitions differ, often

along predictable cultural lines, about the morality of severe punishment for abused women who

kill their sleeping husbands and a man who kills another man because he solicited sex.

81
Kenworthey Bilz and Janice Nadler, Law, Moral Attitudes, and behavioral change. The Oxford Handbook of
Behavioral Economics and the Law, Eyal Zamir and Doron Teichman (Eds.) 2014.
82
Ibid
83
Elizabeth Mullen & Janice Nadler, Moral spillovers: The effect of moral violations on deviant behavior, Journal of
Experimental Social Psychology (2008),
84
Bilz and Nadle (Note 81)
 BIBLIOGRAPHY

Case Laws

1. Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003).

2. Grudge Informer Case [1993] 2 All ER 75 House of Lords.

3. Stephen Muthee Wakuthiye –Vs- Republic (2013) eKLR.

4. CK –Vs- Board of Directors of R. School, Petition No. 450 of 2014

5. JLN & 2 Others –Vs- Director of children services & 4 others Petition No. 78 of 2014

(2014) eKLR.

6. R -Vs- Jackson Namunya Tali High Court Criminal Case No. 75 of 2009.
 7. Kiplagat Korir Vs David Kipngeno Mutai (2006) eKLR.

8. Eric Gitari vs. NGO Board & 4 Others (2015) eKLR.

9. Benson Riitho Mureithi v J. W. Wakhungu & 2 others (2014) eKLR.

10. Shaw v DPP [1962] AC 220.

Legislation and statutes

1. The Constitution of Kenya 2010.

2. The Penal Code Cap 63 Laws of Kenya, Revised Edition 2009 (2008)

3. National Archives Cabinet Papers CAB/129/66; CAB 128/27.

Books

1. Stuart, J. M. On Liberty (J. W. Parker and Son 1859) Chapter 1).

2. Devlin, P. The Enforcement of Morals (Oxford University Press 1965).

3. Feinberg, J. Offense to Others (The Moral Limits of the Criminal Law, Volume Two)

(Oxford: Oxford University Press, 1985) p 26

4. Shoemaker, D. ‘”Dirty Words” and the Offence Principle’ Journal of Law and

Philosophy (2000)19, 545-584.

5. Dworkin, G. Morality , Harm and the Law.(Westview Press 1994)

6. Kizza, J. Ethical and Social Issues in the Information Age, Texts in Computer Science,

Springer-Verlag London Limited 2010 pg 26.

7. Fr. Fagothey, A. Right and Reason, Second Edition. Tan Books and Publishers,

Rockford, (1959.)

8. Mikhaĭlovich, N. K. General Theory of Law, 2nd Edition, New York, the Macmillan

Company. 1909. Pg 52.

9. William C. Starr, Law and Morality in H.L.A. Hart's Legal Philosophy, 67 Marq. L. Rev.

673 (1984)

10. Wolfenden Report, Summary of Recommendations.

11. Hart, H.L.A. Essays in Jurisprudence and Philosophy (Clarendon Press 1983).

12. The Law Dictionary Featuring Black's Law Dictionary Free Online Legal Dictionary 2nd

Ed.

13. Mill, J.S. On Liberty, in The Philosophy of John Stuart Mill 185, 187-203, 271-319 (M.

Cohen ed.1961).

14. Lacewing, M. Mill’s ‘harm principle, Routledge, Taylor & Francis Group.

15. Dworkin, R. M. “Lord Devlin and the Enforcement of Morals” (1966). Faculty

Scholarship Series. Paper 3611. http://digitalcommons.law.yale.edu/fss_papers/3611.

16. Feinberg, J. The Moral Limits of the Criminal Law: Harmless Wrongdoing 173-75

(1988); Thomas Nagel, Equality and Partiality 166 (1991); Ronald Dworkin, Taking

Rights Seriously 240-58 (1977).

17. David, D. "The grudge informer case revisited." NYUL Rev. 83 (2008): 1000.

18. Lacey, N. "Philosophy, Political Morality, and History: Explaining the Enduring

Resonance of the Hart-Fuller Debate." NYUL Rev. 83 (2008): 1059.

19. Nicholson, P. P. "The internal morality of law: Fuller and his critics." Ethics 84, no. 4

(1974): 307-326.

20. Ketchen, J. C. "Revisiting Fuller's Critique of Hart: Managerial Control and the

Pathology of Legal Systems: The Hart-Weber Nexus." The University of Toronto Law

Journal 53, no. 1 (2003): 1-35.

 21. Covell, C. The Defence of Natural Law: A Study of the Ideas of Law and Justice in the

Writings of Lon L. Fuller, Michael Oakeshot, FA Hayek, Ronald Dworkin and John

Finnis. Springer, 2016.

22. Lacewing, M Mill’s ‘harm principle, Routledge, Taylor & Francis Group.

23. Hart, HLA. Law Liberty and Morality 141.

24. Bilz, K. and Nadler, J. Law, Moral Attitudes, and behavioral change. The Oxford

Handbook of Behavioral Economics and the Law, Eyal Zamir and Doron Teichman

(Eds.) 2014.

25. Mullen, E. & Nadler, J. Moral spillovers: The effect of moral violations on deviant

behavior, Journal of Experimental Social Psychology (2008).

Journals and Articles

1. Hospers, J. ‘Libertarianism and Legal Paternalism’ Journal of Libertarian Studies, Vol.

IV. No. 3 (Summer 1980) p 255-265 at 255.

2. Henkin, L. The Age of Rights (Columbia University Press, 1990) 4, Jacqueline Okuta &

another v Attorney General & 2 others.

3. Stanford University (14 March 2011). "The Definition of Morality". Stanford

Encyclopedia of Philosophy. Stanford University.

http://plato.stanford.edu/entries/morality-definition/

4. Law and Morality” By Arthur Scheller Jr. Published on Masquette Law Review.

5. Kelsen, H. ‘The Principles of Sovereign Equality of States as a Basis for International

Organization’ (1944), The Yale Journal Vol 53 <http://www.jstor.org/stable/792798 >

accessed on 6 January 2018

Websites
1. https://www.ibiblio.org/gaylaw/issue6/sylla.htm. Law, Morality and Sodomy. Accessed

on 29th December 2017.

2. http://www.politicalsciencenotes.com/liberty/liberty-definition-nature-and-theories/787

Liberty: Definition, Nature and Theories. Accessed on 8th January 2018.

3. https://www.utilitarianism.com/ol/one.html John Stuart Mill, On Liberty 1859. Accessed

on 8th January 2018.

4. https://www.lawctopus.com/academike/law-liberty/ Law and Liberty – Antithetical to

one another? Accessed on 8th January 2018.

5. https://www.ligonier.org/learn/articles/liberty-vs-law/ Liberty vs. Law? Accessed on 10th

January 2018.

6. http://www.arisaka.org/ethics02LLP.html Liberty Limiting Principles (LLP). Accessed

on 10th January 2018.

7. http://www.talkativeman.com/john-stuart-mill-on-liberty/John Stuart Mill on Limitations

to Individual Freedom. Accessed on 13th January 2018.

8. https://www.alrc.gov.au/publications/justifying-limits-rights-and-freedoms Justifying

limits on rights and freedoms. Accessed on 13th January 2018.

9. http://www.bl.uk/learning/timeline/item107413.html. Accessed on 7th January 2018.

10. http://hansard.millbanksystems.com/commons/1958/nov/26/homosexual-offences-and-

prostitution. Accessed on 7th January 2018.

11. http://www.bl.uk/learning/timeline/large107413.html accessed on 7th January 2018.

12. http://sti.bmj.com/content/sextrans/33/4/205.full.pdf accessed on 7th January 2018.

13. http://hansard.millbanksystems.com/commons/1958/nov/26/homosexual-offences-and-

prostitution. Accessed on 7th January 2018.

14. https://sixthformlaw.info/01_modules/other_material/law_and_morality/08_hart_devlin.h

tm. Accessed on 7th January 2018.

15. https://ais.ku.edu.tr/course/22257/Hart%20Devlin%20Debate.doc accessed on 7th January

2018.

16. http://www.sparknotes.com/philosophy/onliberty/section5.rhtml Of the Limits to the

Authority of Society over the Individual. Accessed on 7th January 2018.

17. Aaron Tanyhill, ‘International law: liberty, equality and morality’ (Academia, 31 March

2017) <http://www.academia.edu/33261979/international_Law_-_Equality_Liberty_and

_Morality> accessed 6 January 2018.