Laws are the set of rules created by the state and enforceable by courts. It mirrors the political, social and monetary connection in the public arena. Laws decide the rights and obligations of people towards each other and the state. It mirrors the sociological need of the society.
Morality is about the principles that define good or bad human conduct. Morality regulates and controls both the internal intentions and the outer activities. It is concerned with the entire existence of man.
There is a popular conception that law and morality are related to each other and that laws exist to promote and protect the moral values of a society. While most of the laws are based on the moral principles of a society, it is not necessary that all laws should be moral. Something while is immoral doesn’t mean that it is illegal. When talking about morality or ethical values, it is not necessary that what may be unethical or immoral to one may be the same to another. E.g. Homosexuality- many relate homosexuality to sodomy and say that it is unnatural, unethical and against the natural order which makes it immoral while others believe that homosexuality is not immoral and that everybody has the right to freedom and liberty, they have the right to choose the way they want to live and to devoid a person of their right to freedom is immoral. Also, it is equivalent to discrimination.
When talking about law and morality, it may be difficult to known exactly whose morality should be adopted and enforced. There are often conflicting views about what the true principles of morality are. The followers of Natural law believe that true law is derived from the moral principles and that these moral principles come from religion, holy books and nature. And whatever is against these principles is not moral or natural. On the other hand, the believers of positivism concentrate on whether the laws are legitimately made in a particular state. According to positivists, a law is considered to be valid if a recognized human authority declares it to be law. The moral content of the law is irrelevant to its validity. What matters is that the laws are made by the appropriate people and that the people making these laws follow the agreed procedure.
LAW AND MORALITY IN CONTEXT WITH HOMOSEXUALITY:
Homosexuality, as a sexual orientation, is defined as “an enduring pattern of or disposition to experience sexual, affectionate, or romantic attractions primarily to” people of the same sex, it also refers to an individual’s sense of personal and social identity based on those attractions, behaviors expressing them, and membership in a community of others who share them.”
Homosexuality or same-sex relationships have in condemned and looked down upon in almost every society because many are of the opinion that homosexuality disturbs the natural order. The stigma and stereotypical thinking of the people when talking about homosexuality is present even in the modern times and there still are laws criminalizing same-sex relations in many countries. Since most laws are based on the morals or what people of a particular society think is morally right or wrong and homosexuality is still considered unethical, the laws criminalizing homosexuality still exist in many countries. .
Homosexuals, gays, bisexuals, and transgender (LGBT) are often denied, either by law or norms, basic political, social, and financial rights. This encroachment of their basic human rights can be seen throughout the world. Through special criminal laws or practices, in various countries, lesbians, gays and bisexuals are denied their rights and are under the attentive gaze of the law. Habitually laws keep up a higher time of consent for same-sex relations in connection with other sexual orientation relations. The benefit to non-isolation and to be freed from violence and goading is regularly denied by disposing of sexual bearing is against division laws, secured plans, or their approval. The benefit of life is ignored in states where the death penalty is material for homosexuality. The alternatives to be freed from pain or pitiless, uncouth, or debasing treatment is infringed upon by police practices, in assessments or the occasion of lesbians, gays, and bisexuals in repression.
However, many nations have recently decriminalized homosexuality, the reason given that the people of that particular state do not consider it to be immoral anymore and that it hinders the liberty and right to freedom, which are the fundamental and the most basic rights of a human being.
MOTSHINDIEMANG V. ATTORNEY GENERAL:
Recently, the state of Botswana decriminalized homosexuality in the landmark case, Motshindiemang v. Attorney General.
In this case, Letsweletse Motshindiemang, a gay Botswana man, challenged the provisions of Botswana Penal Code which condemned homosexuality. Motshindiemang argued that the provisions implied that he was restricted from communicating his feelings of affection, through the act of enjoying sexual relationship with another consenting grown-up male.
Motshidiemang challenged sections 164, 165 and 167 of the Botswana Penal Code, which criminalized homosexuality and sodomy. Motshidiemang argued that these sections violated his rights to liberty, dignity, privacy and the right to be free from any kind of discrimination, as protected by the Constitution of Botswana. The above mentioned provisions of the Botswana Penal Code contradicted Section 3(c), Section 9(1), and Section 15 of the Botswana Constitution.
Motshindiemang filed an application in Botswana High Court in Gabarone. This case was brought against the Attorney General as representative of the State. Motsindiemang contented that these provisions were unlawful and unconstitutional because they were “not made for the peace, order and government of Botswana” and because of the absence of lucidity on the particular subject that was condemned rendered them obscure. He also contended that since his sexual orientation does not cause any harm to rights and privileges of others, the laws criminalizing homosexuality were unconstitutional since they infringed his right to freedom and liberty. Also, these provisions meddled with his personal life and infringed his right to privacy. He also contended that these laws, despite being impartial, victimized him as a gay man.
In this case, the Court analyzed the historical background of the offence of homosexuality, noting that it was introduced in Botswana during the British colonial period and how many British colonies received the structure of the offence from the Indian Penal Code. Botswana adopted these sodomy laws after independence 1964.
The Court also pointed out that the same-sex relationships or homosexuality has been decriminalized globally and that the stigma attached to it has faded over the time. The Court held these laws infringed Motshidiemang’s right to communicate his sexuality in private and that he has an option to a “circle of private closeness and independence”, which isn’t destructive to any individual.
The High Court of Botswana was of the opinion that it was the right time to decriminalize homosexuality, thereby overruling the 2003 decision in Kanane v. S, which upheld the constitutionality of homosexuality laws. The Court held that sexual orientation is innate to an individual and that the criminalization of same-sex relationship infringed the right to freedom, privacy. It added that there was no reason in continuing the criminalization of homosexuality and that there is no justification for infringing those rights.
Even though laws must be found on ethics, these ethics ought not to ruin one’s freedom, opportunity and these laws ought not to advance separation. When discussing Law and Morality in context with homosexuality, we can say that even though many consider that homosexuality or same-sex relationships are improper, one must remember that ordering laws to condemn homosexuality isn’t good because by doing so one obstructs the privilege to opportunity, freedom of another and advances separation.
Many accept that there is no significance among Law and Morality in current times. Something being ethically off-base has nothing to do with it being legitimate or unlawful. Regardless of whether ethics are significant, yet these ought not to be the sole component of any law. A thing or an activity can be legitimate without it being ethically right. For example Deal and utilization of weed are lawful in California even though many may believe it to be indecent. Additionally, in the British colonized Africa, a few laws advanced segregation dependent on color. Even though these laws were unethical, it didn’t imply that they were unlawful around then. Another example is that of infidelity. Despite it being morally wrong, it is not unlawful. In this way, we can say that it isn’t important that for anything to be lawful, it should moral too. Besides, morality is variable. What might be unethical to one, maybe good or moral to another. Ethical quality likewise changes with time. Things that were viewed as morally wrong quite a while back may not be improper today.
At the point when we talk about ethical quality and homosexuality, we for the most part relate it to our religion. Since, the vast majority of religions, similar to Islam and Christianity, denounce homosexuality, it causes us to accept that it is ethically off-base. What’s more, along these lines, numerous individuals have been the casualty of separation and abhor for an extensive stretch. Regardless of whether an individual’s religion doesn’t permit them to advance or bolster homosexuality, they ought not to carry on discriminately with them as the oppression of any person or thing isn’t adequate. One must figure out how to carry on with their beliefs and at the same time regard others’ decisions.
Consequently, we can say that laws and ethics may not be completely separated from one another. However, there are times when there should be a differentiation between the two, with the goal that it doesn’t prompt the infringement of the privileges of the others and doesn’t influence the harmony and amicability of the society.
- Medium- https://medium.com/@sarahnathaniel18/the-endsars-protest-lessons-on-effective-governance-active-participation-and-nation-building-9bee274eb48c
- IEP- https://iep.utm.edu/rawls/
- Wikipedia- https://en.wikipedia.org/wiki/Varieties_of_criticism
- Jisho- https://web.archive.org/web/20180414174046/http://jisho.org:80/word/%E5%90%8C%E6%80%A7%E6%84%9B
- StuDocu- https://www.studocu.com/in/document/tamil-nadu-national-law-university/bcomllbhons/family-law-i-project-on-sexual-minorities/16465210
- Motshindiemang v. Attorney General – MAHGB-000591-16 [ JUNE 11,2019]
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