Law against morality and legality of same sex marriage in Tanzania.

PRELIMINARY

Basing on natural law theory, all human beings inherit through a divine presence, a universal set of moral rules that govern human conduct[1]. Natural laws originate from nature and are independent from what we call ‘positive laws” or man-made laws, natural laws are norms, values or characters that are considered as standard of living of a particular ethnic group and they bind all members of the society or group. Human beings inherit natural laws from one generation to another and those values cannot be changed but they can be incorporated in statutes to be legally justified and protected. Positive laws may be influenced by natural law, but natural laws cannot be influenced by positive laws because they were there even before the coming of human beings, they naturally exist and no human being involved in making them hence no one can change them[2]. As per the history, the philosophy of natural law has dealt with the timeless question of “right vs. wrong” in determining the acceptable or proper human behavior. There have been several disagreements on the concept of natural law and its relation to positive law, its status and influence toward each other and justification of both natural and positive law.

Aristotle (384-322 BCE) stated that, what was just by nature was not always just by law, that there was natural justice which was valid and acceptable worldwide, with the same force and not existing by people thinking. There was also legal justice which was derived from man-made laws, the justice which was not the same everywhere and its enforcement was likely different basing on geographical differences and culture. In 12^th Century, Gratian an Italian monk and father of the study of canon law, considered natural law to be divine law originate from God. Gratian believes that, natural laws are all covered by Old and New Testament hence they’re laws of God that human beings cannot change. St. Thomas Aquinas (1224-1274), propounded that, though the eternal law of divine reason is not well known to us in its perfection as it exists in God’s mind, but it partly known to us not only through revelation but also through the operation of our reasons. Aquinas believes that, human beings are bound to apply natural law if they think the natural laws helps to fulfill one’s good or fulfil those inclinations which nature has taught to all animals. The following are essential elements of law which differentiate it from morals; -

ELEMENTS OF POSITIVE LAW AGAINST MORALITY

Law is the system of written rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties[3]. Morality is a set of ethical principles which define what is right and what is wrong. Morals are not written anywhere but they are known to the society and they’re not must-follow rules but failure to follow it may destruct social relation of the wrongdoer against the society. Morals may be different from one place to another depending to the culture of the society.

Enforcement of laws is quite different from enforcement of morals. Laws are enforced by the ruling bodies of a country such as local governments, police and courts of law while there is no such significant body to enforce moralities. The bodies like churches and mosques teach social ethics and morals but they do not have legal authority to arrest and prosecute offenders who breach morals[4].

Law is accompanied with punishments and sanctions while there is no sanction on the side of morality. Statutes describe offences together with its punishment that a wrongdoer may be subjected if found guilty by court. There is no statute for morals and immoral, moralities are known in heads of members of society and people live basing on those morals. There are immoral conducts which are unacceptable by the community but a wrongdoer cannot be subjected to any legal sanction or punishment before court of law. The sanctions for breach of morals are likely social sanctions where a wrongdoer may be segregated and denied cooperation by members of the society. Morals are only punishable under law when such immoralities constitute an offence established under laws of the state otherwise, they’re unpunishable.

Law is definite and precise, it points directly to a fact, thing or matter while morals are vague and indefinite. Laws speak about a particular actual thing and it provides clear about the scope and limit of the provisions while morals are vague, they’re not set clear, they may differ from one tribe to another and they may cease to exist when positive laws finds that moralities are baseless. Also, laws are powerful within the territory of the state where they’re enacted while morality is universal and almost applies the same worldwide. Some acts are treated immoral worldwide for-instance early marriages, love affairs before marriage, giving birth out wedlock etc.

LEGALITY OF SAME SEX MARRIAGE

In Tanzania, same sex marriages are both immoral and illegal. Same sex are not acceptable by all tribes or communities in Tanzania and most countries of the world. Section 154 of the Penal Code[5] provides that;

“Any person who has carnal knowledge of any person against the order of nature; or permits a male person to have carnal knowledge of him or her against the order of nature, commits an offence, and is liable to imprisonment for life and in any case to imprisonment for a term of not less than thirty years”.

Section 14 of the Law of Marriage Act[6] do not prohibit same sex marriages but it provides a range of other prohibited relationships. By applying mischief statutory interpretation, section 154 probits same sex marriages, and it makes it illegal having carnal knowledge.

CONCLUSION

Basing on contributions of philosophers above, natural laws are law of God which binds all people at the universal level. They are same and applies equal worldwide, they lay principles or ground for positive laws. Positive law derives it validity from natural law, positive law must conform to natural laws to be valid and acceptable. Due to this, same sex relationships or marriages are unacceptable because they’re against natural law and no positive law against natural law may survive. Going against natural law is good as going against God rules, men are there for women and not for their fellow men and vice versa.

REFERENCE

 

STATUTES

Penal Code, [Cap 16 R: E 2019] s.154

The Law of Marriage Act, [Cap 16 R: E 2019] s.14

 

OTHER SOURCES

Thought co, “Natural Law: Definition and Application”, available at https://www.thoughtco.com/natural-law-definition-4776056 [accessed January 29, 2023].

Stanford Encyclopedia of Philosophy, “Natural Law Theories”, available at https://plato.stanford.edu/entries/natural-law-theories/ [accessed January 29, 2023].

Pedia, “What is the Difference Between Law and Morality”, available at https://pediaa.com/what-is-the-difference-between-law-and-morality/ [accessed January 29, 2023].

Share your essay, “law and morality”, available at https://www.shareyouressays.com/essays/essay-on-the-distinction-between-law-and-morality/88504 [accessed January 29, 2023].

---

[1] Thought co, “Natural Law: Definition and Application”, available at https://www.thoughtco.com/natural-law-definition-4776056 [accessed January 29, 2023].

[2] Stanford Encyclopedia of Philosophy, “Natural Law Theories”, available at https://plato.stanford.edu/entries/natural-law-theories/ [accessed January 29, 2023].

[3] Pedia, “What is the Difference Between Law and Morality”, available at https://pediaa.com/what-is-the-difference-between-law-and-morality/ [accessed January 29, 2023].

[4]Share your essay, “law and morality”, available at https://www.shareyouressays.com/essays/essay-on-the-distinction-between-law-and-morality/88504 [accessed January 29, 2023].

[5] Penal Code, [Cap 16 R: E 2019] s.154

[6] The Law of Marriage Act, [Cap 16 R: E 2019] s.14