JURISPRUDENCE

SEMINAR 6: LIBERTY AND MORALITY

PRESENTED BY:
1. JEMIMAH ALUDA
2. LAWRENCE MADIALO
3. VINCENT
4. IRENE MIKANGI
5. HILDA NJERU
. DE!INITION
1
.1 LIBERTY
The Freedom from all restraints except such are justly
imposed by law. It is the freedom from restraint under conditions
essential to the equal enjoyment of this same right by others,
regulation and law.
Liberty is a concept of political philosophy which identifies the condition in which an
individual has the right to act according to his or her will. Two types of liberty have been
proffered by scholars and philosophers
!ositive liberty
!ositive liberty asserts that freedom is the ability of society to achieve an end.
"egative liberty
In the negative sense, one is considered free to the extent to which no person interferes with
his or her activity. #ccording to Thomas $obbes, for example, %a free man is he that... is not
hindered to do what he hath the will to do.%
.2 MORALITY
&oncern with the distinction between good and evil or right and wrong' right or good
conduct.
&onformity to the rules of right conduct' "#$%& or virtuous conduct' "#$%& quality or
character' and virtue in sexual matters' chastity.
# "#$%& discourse, statement, or lesson b a literary or other imaginative wor( teaching a
"#$%& lesson ) a a doctrine or system of "#$%& conduct.
*oral that which is cogni+able or enforceable by priciples of right
conduct as distinguished from positive law.
1. INTRODUCTION
2
!ositivists have attempted to distinguish between law and morality and this has generated its
own problems. !ositivism characteri+es law as the order of a political superior to a
subordinate. The legal relevance of the morality of the subordinate is thus substantially
reduced. *embers of the group to whom the commands are directed who have the intense
moral demands of their own will find that it is increasingly difficult or morally costly for
them to comply with the law even if they assume that law is entitled to some obedience.
Indeed, the distinction between law and morality, flowing from the very formulation of
positivism has generated its own cottage industry of jurisprudence. ,-ead $.L.#. $art
Positivism and the Separation of Law and Morals, ./ $#-0. L.-. 123, 4/154)6 ,/2178.
The author explains that the reasons for the drawing of a line between law and morality
include the fear that conflicting claims over what constitutes morality could lead to civil
strife' the fear that a majority of an elite, acting through the government , would impose its
own notions of morality upon others in the community and intrude upon 9private: spheres of
action and that the 9scientific: bent of !ositivism which eschewed notions of morality since
they supposedly could not be proven or established by empirical inquiry .
$art in his article has attempted to point out an additional advantage in distinguishing law
from morality. $e states that a lin( between the two could, he claimed, permit reactionaries to
argue that a law is ipso facto moral and hence should not be changed' this would obstruct
necessary law reform. #t the same time, those dissatisfied with existing law could invo(e its
9immorality: and claim that the law in its entirety should be superceded' this would
undermine social stability. ,$art, The Concept of Law )648
!ositivism regards a law as valid even it is immoral. $art notes that a person who is under a
legal duty to obey the law which is, by definition, valid, might still refuse to obey it on
grounds of morality or individual conscience.
$owever, morality still plays a role in legislative prohibitions and judicial interpretation
concerning the sale or distribution of obscene materials li(e pornography.
"ot surprisingly, positivists have hardly carried the day in their rejection of a role for
morality in decision and law. *any judges continue to feel that fundamental moral principles
should be and are expressed in the law and should in particular be used to supplement or
temper the application of formal legal principles.
In many cases, these two positions are proxies for fundamental disagreements about (ey
issues in the organi+ation of the society. In ;ngland, a debate over the appropriate legal
3
response to adult consensual homosexuality generated a jurisprudence debate dealing with
the problem of homosexual offences and prostitutions. The jurisprudence debate dealing with
these problems is more pronounced in the present <enyan scenario as will be discussed later.
2. THE WOL!ENDEN REPORT: HOME O!!ICE REPORT ON
HOMOSE'UAL O!!ENCES AND PROSTITUTION (CMD 24) (1*5)+
1
2.1 C$,%-.#/ #0 -1, R,2#$-
In the wa(e of several scandalous court cases in which homosexuality had been featured, the
=ritish !arliament on #ugust )>
th
, /21> appointed a committee of /1 men and women whose
tas( was to consider the extent to which homosexual behavior and female prostitution should
come under the condemnation of the criminal law. This mandate presented the committee
with the difficulty of deciding what the essential elements of a criminal offense are.
The author states that there appears to be no unquestionable definition of what constitutes or
ought to constitute a crime and one cannot answer the question by defining it as 9an act
which is punished by the state:. The answer would be derived from as(ing what acts ought to
be punished by the state. In answering this question, the committee came up with a
formulation of the function of criminal law so far as it concerns the subjects of the enquiry. In
that field the function as was seen by the committee is
,i8 To preserve 9public order and decency:
,ii8 To protect the citi+en from what is 9offensive or injurious: and
,iii8 To provide sufficient safeguards against exploitation and corruption of others,
particularly those who are especially vulnerable because they are young, wea( in
body or mind, inexperienced, or in a state of special physical, official or economic
dependence.
)
The committee reported that it is not in their view, the function of the law to intervene in the
private lives of citi+ens, or to see( to enforce any particular pattern of behavior , further than
is necessary to carry out the purposes outlined above. It follows according to the &ommittee
that the function of law is not to attempt to cover all the fields of sexual behavior. That certain
1
The Report of the Departmental Committee on Homosexual Ofences and Prostitution,
published on eptember 3
rd
1!"# b$ the %ritish &o'ernment, is (no)n as the *olfenden
Report after the Chairman of the Committee, ir +ohn *olfenden ,1!-./1!0"1, at the time
the 2ice Chancellor of Readin& 3ni'ersit$4
2
Compare the pro'isions of ection . as read )ith section 53 of the exual Ofences 6ct
7o 3 of 2--.4
5
forms of sexual behavior are 9regarded by many: as sinful, morally wrong, and objectionable
for reasons of conscience, or of religious or cultural tradition' and such actions may be
reprobated on these grounds. =ut the criminal law did not cover all sections at the moment
then for example adultery and fornication are not offences for which a person can be
punished by criminal law.
The committee held that as a part of the function of the law to preserve public order and
decency, when homosexual behavior between males ta(e place in public it should continue to
be dealt with by the criminal law. #nd therefore the committee was of the opinion that
offences committed by adults with juveniles and offences committed in public places should
be the laws concern and that the law should not concern itself with what a man does in
private unless it can be shown to be so contrary to the public good that the law ought to
intervene in its function as the guardian of that public good.
2.2 L.3,$-450$,,6#"
The strong argument put by the committee was the importance which society and law ought
to give to individual freedom of choice and action in matters of private morality. ?nless a
deliberate attempt is made by society, acting through the agency of the law, to equate the
sphere of crime with that of sin, there must remain a realm of private morality and immorality
which is, in brief and crude terms, not the laws@ business. The committee in its report states
that to say this is not to condone or encourage private immorality but on the contrary, to
emphasi+e the personal and private responsibility which a mature agent can properly be
expected to carry for himself without the threat of punishment from the law.
2.3 P$#7-.-8-.#/
The committee reported that prostitution is a social fact deplorable in the eyes of moralists,
sociologists and the great majority of ordinary people. =ut it has persisted in many
civili+ations throughout many centuries, and the failure of attempts to stamp it out by
repressive legislation shows that it cannot be eradicated through agency of the criminal law.
3

It remains true that without a demand for her services, the prostitute could not exist, and that
there are enough men who avail themselves of prostitutes to (eep the trade alive. It also
remains, according to the report, true that there are women who, even when there is n
economic need to do so, choose this form of livelihood. The reports states that for so long as
3
Perhaps this ar&ument informs the minds of those )ho ha'e brou&ht to the public fora
the debate as )hether prostitution should be le&ali8ed4
"
these propositions continue too be true there will be prostitution, and no amount of legislation
directed towards its abolition will abolish it.
It therefore follows from the report that there are limits to the degree of discouragement
which the criminal law can properly exercise towards a woman who has deliberately decided
to live her life in this way, or a man who has deliberately chosen to use her services. The
criminal law, as the Atreet Bffences &ommittee plainly pointed out in the report, is not
concerned with private morals or with ethical sanctions. $owever, this does not mean that
society itself which claims to be civili+ed should see( to rid itself' but this end could be
achieved only through measures of sexual relationship and to a raising of social and moral
outloo( of society as a whole.
In these matters, the wor( of the churches and organi+ations concerned with mental health,
moral welfare, family welfare, child and marriage guidance and similar matters should be
given all possible encouragement. =ut until education and the moral sense of the community
bring about a change of attitude towards the fact of prostitution, the law by itself cannot do
so. #t the same time, the law has its place and functions in the matter because the law is
concerned not with private morals or ethical sanctions but with the outward conduct in so far
as that conduct injuriously affects the rights of other citi+ens.
&ertain forms of conduct it has always been thought right to bring within the scope of the
criminal law on account of the injury which they occasion to the public in general. It is within
this category of offences, if any where, that public solicitation for immoral purpose finds an
appropriate place.
2.4 H#9 0%$ &%9 %/6 -1, :#"28&7.#/ #0 &%9 71#8&6 7,,; -# $,<8&%-, -1, 3,1%=.#$ #0
./6.=.68%&7>
The subjects considered by the committee raise in the most acute form one of the perennial
dilemmas of an organi+ed society. That is, how far law and the compulsion of the law should
see( to regulate the behavior of individuals. I thin( we all agree that there is a sphere of
conduct in which the behavior of individuals must be controlled by the sanctions of the law,
in their own interests, in the interests of others, and in the interest of the society at large. I
thin( it would be agreed that there is a sphere which it is proper to leave to the dictates of
individual conscience' that is individual conscience as fortified by the teachings of religion
and the generally accepted standards of the society in which we live.
.
Chere the dispute arises ,and that is why we are now here studying the same8 is in defining
the limits of those two spheres. To ma(e the matter simpler, let us remind ourselves of the
postulates on which the committee wor(ed. The committee stated that in its view the function
of the law in regard to sexual behavior was threefold first to preserve public order and
decency, secondly to protect the citi+en from what is offensive and injurious' and thirdly to
provide sufficient safeguards against exploitation and corruption. These seem to be well
stated and admirable principles, and as jurisprudence students we should examine them.
2.5 W1%- .7 #00,/7.=, %/6 91%- .7 ./?8$.#87>
I personally have no difficulty in assenting to the first, which is that the law should be so
framed or held, as it is, as to preserve public order and decency. I thin( that there is the
agreement that the law should provide a safeguard against exploitation and corruption.
$owever, it is when we come to the second function, as defined by the committee, namely
the protection of citi+en from what is offensive and injurious, that we have greatest difficulty
and have to ma(e up our minds.
That raises and does not answer the fundamental question 91%- .7 #00,/7.=, %/6 91%- .7
./?8$.#87: 91%- ;./67 #0 :#/68:-@ -1, :#"".--,, %7;,6@ %$, 7# :#/-$%$4 -# -1, 283&.:
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"%--,$ ,/-.$,&4 0#$ -1, 2$.=%-, :#/7:.,/:,7 #0 -1, 2%$-.,7 :#/:,$/,6> To get a proper
answer to that question one needs to loo( bac( a little at history, but if we do we see that the
questions of homosexuality and prostitution have been with us in the world, in every nation,
since the beginning of time and that widely different views about homosexual conduct have
been ta(en in different ages and in different societies.
In ancient Dreece, for example, at times this practice was accepted and even admired. In
some military societies or castes it has been cultivated as a way of life which, it has been
alleged, has given cohesion to the group. In other societies, including those permeated by the
&hristian ethic, it has been abhorred as an unmentionable evil and visited with the severest
penalties.
Ao, if we loo( bac( we get a variety of testimony. If we loo( at the past of this country we
find that the extreme form of homosexual conduct has been condemned by the criminal law
for more many years. This derived originally from the =ritish colonial law which in turn
#
derived the same from the ecclesiastical law, but is now our statute law. Therefore, in
considering this matter we must realise that these are the facts and the point from which we
must start is inescapable.
Ao much for the facts.
The &ommittee, when trying to give its views, drew a sharp and valid distinction between sin
and crime. #pplying the definition of the function of the criminal law, which I have already
quoted, the &ommittee felt that while private homosexual conduct between consenting adults
might be sin, and was commonly so regarded, it was not, or rather ought not, to be crime. The
&ommittee argued that to carry the criminal law beyond its proper sphere is to undermine the
moral responsibility of the individual.
The report argues that if conduct which is morally wrong is not injurious to society, then it
ought to be left to the operation of the individual conscience. I thin( that we should all agree
that in a free society there are few things more important than to sustain the sense of
individual responsibility, whether it be civic responsibility or responsibility for private
conduct. =ut this argument can be accepted as a reason for leaving homosexual conduct to
the private conscience only if one is convinced that society will not be harmed by so doing.

Let us examine this further, because the &ommitteeEs case was very strongly put. Let us loo(
at the other side. &an we be certain that homosexual conduct between consenting adults is not
a source of harm to othersF The following arguments appeal, at this time, to many. The first
one which stri(es me is this' that a homosexual groupGI understand that there are such
groupsGmay tend to draw in and corrupt those who are bisexual by nature and capable of
living normal lives, but are led by curiosity, wea(ness, or, in some cases, purely mercenary
motives, into homosexual society. Chile it may be argued that escape from such a group is
easier if its activities are not illegal, it is equally arguable that resistance to its attraction is
stronger in the first place if its activities are illegal as well as immoral. Ao we are not starting
from the very beginning with an absolutely clean start.
=ased on these arguments, the &ommittee proposed to alter the law, not expressly to
encourage or legalise such practices, but to remove them, li(e adultery and other sins, from
the realm of the law.
The second part of the committee@s report deals with prostitution. $ere also, the committee
was concerned only with the law.
0
The discussion on homosexuality disclosed deep disagreement upon what is desirable to
do.
Bn prostitution the position is different. There is probably little disagreement on what is
desirable' the question is what is possibleF I thin( that most of us would agree that
prostitution is a trade which we would li(e our country to be without, but we should also
agree with the committee that until education and the moral sense of the community bring
about a change of attitude to the fact of prostitution, the law by itself cannot do so. That does
not mean that the law should ma(e no contribution to the redemption of the individual
prostitute. Ce may accept for the time, as other nations and civilisations have done right
through history, the fact of prostitution, but each girl who becomes a prostitute, with all that
entails of eventual degradation and misery, is a reproach to our society.
The &ommittee was in no doubt that nowadays prostitution is a way of life deliberately
chosen because it suits a particular womanEs personality and gives her both freedom from
ir(some routine and the means of earning much more that she would earn in regular
employment. It is no longer a way of life which a woman adopts because no other is open to
her, and the opportunities for rescuing women from it are consequently limited.
#ll this is quite different from what happened a long time ago ,or in different societies for our
local scenario8 when prostitutes are and were the poorest creatures of society, very often
forced into prostitution to earn sufficient to (eep themselves alive.
This matter is raised because if parliament is to legislate on prostitution what form should it
ta(eF
The society has a duty, particularly with the young, to bring every means of redemption to
bear before prostitution becomes a settled habit, and the laws, should, as far as possible, assist
towards this end, although it cannot itself achieve it.
>
#s the Colfenden &ommittee said, we should ta(e every legitimate chance of dissuading
girls from adopting a life of prostitution by advice and help rather than by involving them in
the machinery of the law. If they are warned at an early stage and perhaps put in touch with
one of the voluntary organisations which do such valuable wor(, they might turn bac( before
they have accepted prostitution as a settled way of life. If, despite the warnings and advice a
5
The exual Ofences 6ct pro'ides for criminal sanctions for promotion of sexual ofences
)ith a child, child tra9c(in& )ith the intention of facilitatin& sexual ofence a&ainst the
child, child sex tourism, child prostitution, child porno&raph$, exploitation of prostitution,
prostitution of persons )ith mental disabilities amon& other ofence ,ee sections 12/1!1
!
girl continues on this path and has to be brought before the courts, everything possible should
be done at that stage to see that she receives all the assistance which can be provided by the
probation service and the other social services available. Ahe should be given every
encouragement and practical help to abandon the life before she becomes accustomed to it.
The &ommittee believed that the function of the law in this field was to clean up the streets
and to prevent exploitation. Its principal recommendation was that the law relating to street
offences should be reformulated broadly in three waysGfirst, to eliminate the requirement to
establish annoyance.
The &ommittee set out in paragraph )11 In our view both loitering and importuning for the
purpose of prostitution are so self5evidently public nuisances that the law ought to deal with
them, as it deals with other self5evident public nuisances, without calling on individual
citi+ens to establish the fact that they were annoyed. ;arlier, in paragraph )1/, the &ommittee
said ?sually the prostitute pleads guilty, but if she does not the courts are usually prepared to
accept the evidence of a police officer who witnessed the offence, to the effect that a person
or persons accosted appeared to be annoyed.
The next proposal that the &ommittee made was that the maximum penalty should be
increased, and a system of progressively higher penalties for repeated offences introduced'
and the &ommitteeEs third recommendation was that this should culminate in sentences of
three monthsE imprisonment for the third, and for subsequent offences. Ao much for the
&ommitteeEs recommendations.
2.6 LOCAL LEGISLATION
#rticle >2 of the $armonised Hraft &onstitution guarantees freedom of conscience, religion,
belief and opinion. If I am not wrong the subjects of homosexuality and prostitution may be
discussed under this provision. $owever, article 33,/8 of thee said draft provides for the
limitation of rights or fundamental freedoms specifically the need to ensure that the
enjoyment of rights and fundamental freedoms by any individuals does not prejudice the
rights and freedoms of others. This may be a basic justification for the intervention of law on
issues of morality as discussed above.
$owever, an interesting provision is #rticle >),/8 which defines family as the natural and
fundamental unit of the society and the necessary basis of social order. #rticle >),)8 provides
that every adult has the right to marry a person of the opposite sex, based upon the free
1-
consent of the parties does this mean that homosexuality which is an ingredient for gay
marriage is being declared not only illegal but unconstitutionalF
In the ?A a suit has been instituted by two gay couples challenging an amendment to the
constitution of the state of &alifornia which banned gay marriage and restricts marriage to
union between man and woman. They say that the constitution enshrines the right to marry
but, by limiting it to heterosexual couples, it discriminates against gay people.
-elatedly, in ?ganda there is a legal proposal which includes death penalty for some
homosexual act. $omosexual acts in ?ganda are punishable by up to /> years in jail.
$owever, the proposed law would introduce the death penalty for 9aggravated
homosexuality: Iinvolving a minor, if the perpetrator is $I0 !ositive and for 9serial
offenders:. The law see(s to enhance the punishment for other homosexual acts to life
imprisonment. This bill has spar(ed condemnation and donor countries namely Aweden has
threatened to cut aid to ?ganda if the bill is passed into law.
11
3. OBSCENITY A H%$$4 S-$,,-
The following is an analysis and critique of chapter 1 of the boo( Freedom, the Individual
and the Law by $arry Atreet, titled Freedom of ;xpression.
3.1THE UK LEGAL POSITION UNTIL 1*5*
3.1%THE OBSCENE PUBLICATIONS ACT (1B5)+
In /443, Air &harles Aidley was convicted of obscenity following his behaviour after a
drin(ing orgy for showing himself na(ed in a balcony and Jthrowing down bottles ,pist in8 vi
et armis ,with force and arms8 among the people in &onvent Darden, contra pacem ,against
the peace8 and to the scandal of the government. In the words of the author, 9to hold this
conduct criminal was an innovation: as the law had hitherto not attempted to criminalise or
chastise any immoral obscenities.
This judicial invention elicited debate in the run5up to the adoption of the 1B5) O37:,/,
P83&.:%-.#/7 A:- where it was stated in the $ouse of Lords that the #ct was intended to
apply exclusively to wor(s written for the single purpose of corrupting the morals of youth
and of a nature calculated to shoc( the common feeling of decency in a well5 regulated mind.
In /747 there was decided the celebrated matter of R V H.:;&./ (1B6B+ LR 3 CB 36, a case
for the destruction of 9The &onfessional ?nmas(ed: I a pamphlet put out by the !rotestant
;lectoral ?nion with the purpose of exposing the immorality of the practice of hearing
confessions. The pamphlet was made up of the wor(s of various &atholic theologians and
contained descriptions of sexual concerns women confessed to priests. It is not (nown
whether the pamphlet continued to circulate after their sei+ure in 1B)1, but the court decision
that originally ordered the pamphletEs destruction came to be (nown as the DH.:;&./ R8&,D
and had lasting importance.
In upholding the magistrate@s order, &hief Kustice &oc(burn came up with the test of
obscenity as follows,
Jthe test of obscenity is this whether the tendency of the matter charged as obscenity
is to deprave and corrupt those whose minds are open to such immoral influences and
into whose hands a publication of this sort may fall.@
12
The nineteenth century gave way to a more aggressive legislature with regards to obscenity.
In /2)3 the ?nited <ingdom signed an international convention for the suppression of the
circulation of and traffic in obscene publications, and shortly afterwards, there was an
increase in prosecutions for obscenity.
In the prosecution of Aec(erL Carburg for The Philanderer ,boo( by Deorge =ernard Ahaw8
in R. V M%$-./ S,:;,$ E W%$38$< L-6 F1*54G 1 WLR 113B@ *r Kustice Atable summed up
to the jury in a manner which received great praise in the !ress ,emphasis added8
9-emember the charge is a charge that the tendency of the boo( is to corrupt and
deprave. The charge is not that the tendency of the boo( is either to shoc( or to
disgust. [the question arises], well [to] corrupt and deprave whomF: To which the
answer is those whose minds are open to such immoral influences and into whose
hands a publication of this sort may fall. #re we to ta(e our literary standards as being
the level of something that is suitable for the decently brought up young female aged
fourteenF Br do we go even further bac( than that and are we to be reduced to the sort
of boo(s that one reads as a child in the nurseryF The answer to that is of course not.
# mass of literature, great literature, from many angles is wholly unsuitable for
reading by the adolescent, but that does not mean that a publisher is guilty of a
criminal offence for ma(ing those wor(s available to the general public. [And here] I
am not tal(ing about historical novels when people write a story of some past age. I
am tal(ing about the Jcontemporary novelist@ I mean the novelist who writes about his
contemporaries, who holds up a mirror to the society of his own day. The function of
the novel is not merely to entertain contemporaries' it stands as a record or a picture
of the society when it was written. In the world in which we live today it is equally
important that we should have an understanding of how life is lived and how the
human mind is wor(ing in those parts of the world which are not separated from us in
point of time but are separated from us in point of space. If we are to understand how
life is lived in the ?nited Atates of #merica, France, Dermany, or elsewhere, the
contemporary novels of those nations may afford us some guide, and to those of us
who have not the time, opportunity, money or possibly, the inclination to travel, it
may even be the only guide.:
13
I believe this dictum was ahead of its time. Chat we need to borrow from this exemplar is the
fact that obscenity and to a larger extent morals are both relative and dynamic in the literal
sense of the term since they are bound to mutate in tandem with the evolution of society.
&ontrast it with the trial of $utchinson in respect of September in Quinze three months later.
The Kudge, Air Derald Hodson, told the jury, who convicted
9# boo( which would not influence the mind of an #rchbishop might influence the
minds of a callow youth or girl just budding into womanhood....It is a very comforting
thought that juries from time to time ta(e a very solid stand against this sort of thing
and reali+e how important it is for the youth of this country to be protected and that
the fountain of our national blood should not be polluted at its source.:
This highly conservative approach led to the conviction of the accused. It is an apt illustration
of how the moral high ground is ta(en at the expense of appreciative literary wor(s. Its effect
was to summarily erode the gains made by forward thin(ing minds of the bench. Inasmuch as
the analogy of the polluted blood fountain carries some weight, it is not in the interests of
society for the judiciary to shape its concerns, behaviour and practices. This would inevitably
result in a constricted society. In the words of the writer, most people would agree that the
law should punish and prevent pornography, but that it should not interfere with serious
literary wor(s.
#s concerns the test of obscenity, shouldn@t the standard be that of the normal, reasonable
person, unless the abnormal or the young are shown to be the probable readersF #dditionally,
shouldn@t the circumstances of the publication be considered as wellF In Hicklins case itself
&hief Kustice &oc(burn said
J# medical treatise, with illustrations necessary for the information of those for whose
education or information the wor( is intended, may, in a certain sense, be obscene,
and yet not the subject for indictment' but it can never be that these prints may be
exhibited for anyone, boys or girls, to see as they pass.@
The class six $ome Acience study text has a diagrammatic representation of the male and
female reproductive anatomy. It inadvertently roused more that our academic senses. Hoes
that ma(e it obsceneF #t the same time when a daily newspaper runs an article ,with
supporting illustrations8 on vasectomy, is there a hint of obscenityF
15
There is no clear judicial guidance of when and for what purposes Jcircumstances of
publication@ were relevant. Bne would have desired at least a finding that the probable
readership should be judged by considering such circumstances of publication as the nature
of the advertising material, the publisher@s reputation, the channels of distribution, the price
and quality of the boo(s sold' but nothing explicit emerged.
The relevance of the literary, scientific, and educational values of the wor( was also not
considered thus resulting in a somewhat one sided assessment of the matter by judicial
officers who would interpret the law and construe it to merge with the religious doctrine. It
does not help that most senior judicial officers, be they &hristian or *uslim are quite pious.
Muestion is, in exercising their discretion, aren@t they required to recall the formation they
undertoo( in &hurch or at the *osqueF If not religion, what then mould the conscience of a
man for him to apply his discretion therefromF
3.13 THE CHILDREN AND YOUNG PERSONS (HARM!UL PUBLICATIONS+ ACT@
1*55.
The #ct applies to any boo( or maga+ine of a (ind which is li(ely to fall into the hands of
children or young persons and consists of stories told in picture, being stories portraying the
commission of crimes or violent, cruel, repulsive of horrible acts or incidents in such a way
that the wor( as a whole would tend to corrupt a child or young person into whose hands it
might fall. It is an offence to print, sell, publish, let on hire, of possess for those purposes any
such wor(.
=oth the /71. #nd /211 statutes miss the mar( when it comes to a fundamental estimation'
when is a thought JNmpure@F The author proffers some thought provo(ing impugns on the
same.
Is the thought impure only when it relates to sexual passionF
Chat if it relates to normal sexual intercourseF
Chether in the marriage bed, Ounder itP or outsideF
Is the thought impure if it relates to perversionsF
1"
Ho boo(s on sex in the marriage corrupt or depraveF
Chat degree of causal relationship must there be between the boo( and sexual
thoughtF
Ho we (now when and how and to what extent the reading of a particular boo( will
arouse sexual passions, either in itself or with the aid of other stimuli, and, if only
with the aid of the latter, is this sufficiently casualF
In any event should the law concern itself with men@s thoughtsF Is this in line with the
$obessian Aocial contract or are we not enjoy Kean5Kacques -ousseau@s liberal
republicanismF
*an being a free being and with the freedom of conscience should be allowed to have
unbridled thoughts. $is thought process should run free, provided he does not put the
thoughts into action and run amo(. In as much as the mind is sometimes the devil@s
wor(shop, there is no sign, symbol or mar( that will identify one whose minds and thought
processes have been overridden by lucifer.
3.1: T1, ,/6 %7 ?87-.04./< -1, ",%/7
Bne would argue that religious doctrine dictates that lustful and other immoral thoughts are
sins of the mind and flesh. -ightly so, but what is the nexus between the law and moralityF
Ahould the church interfere with the way secular man attempts to govern himselfF #t what
point do the church and the law merge andQor partF There is a separatist wall between the
state and the church as argued by Kohn Loc(e, at least on paper, so the above argument is
inadequate, insubstantial, and ill5conceived. In any event, a man@s thoughts and heart are
between him and his gods, his actions are mediated upon by the law.
In this regard, maybe the law is really loo(ing to the depraving and corrupting conse!uences
of stimulating immoral and sexual thoughts, i.e. forms of sexual conduct condemned by
contemporary society.
The sophism in such a line of argument is that nobody, judges included, can measure the
effect of a boo( on the sexual behaviour of the reader. #nd neither is it their place to attempt
to conceive a yardstic( on what amount of exposure is morally sound.
1.
#gain here we have the issue of relative contemporainity. In the olden ages, human sacrifice
was moral and even sacred. The 9contemporary: society of yore practiced the same in broad
daylight. *odern man has since outlawed such practices rendering immoral and criminal.
The society and its practices are never static and as such the legal mind should be more
accommodating to at the very least, appreciate that a certain idea or thought process might be
normal even if it@s rare. Is a boo( obscene because it is calculated to bring about a change in
the accepted moral standards of societyF From this it is not a big step to condemn the
offensive, the vulgar, the shoc(ing and the unchartered as obscene.
&ase in point is the boo( Lolita, an #merican novel by 0ladimir "abo(ov, which the $ome
Bffice attempted to bar from publication in. $owever, the boo( is internationally famous for
its innovative style and infamous for its controversial subject the protagonist, a middle aged
$umbert, becomes obsessed and sexually involved with a twelve5year5old girl. #fter its
publication Lolita attained a classic status, becoming one of the best5(nown and most
controversial examples of )6th century literature. The name %Lolita% has entered pop
culture to describe a sexually precocious young girl. The novel was adapted to film in
/24) and again in /22.. Lolita is listed in the T"M# /66 =est ;nglish5language "ovels from
/2)3 to )661. It is fourth on the *odern LibraryEs /227 list of the /66 =est "ovels of the
)6th century.
I7/H- -1, <##7,H7 7%8:, -1, <%/6,$H7 %/4"#$,>
# related question is whether the &ourts exist to fulfil a social function. The judiciary should
focus on its core function ,interpreting the law8 and cease being a busy body of sorts.
Hespite all this, in /21>, /4.,666 boo(s and in /21. )),666 postcards had to be destroyed in
the ?< alone.
3.2 THE OBSCENE PUBLICATIONS ACT@ 1*5*
Aection / of the #ct provides that an article is obscene if its effect is,
Jif ta(en as a whole, such as to tend to deprave and corrupt persons who are li(ely,
having regard to all relevant circumstances, to read, see or hear the matter contained
or embodied in it.@
Aection > provides that no offence is committed'
1#
Jif it is proved that publication of the article in question is justified as being for the
public good on the ground that it is in the interests of science and literature, art, or
learning, or other objects of general concern@.
The combined effect of these provisions is to create an absurd paradox. $ow can something
be justified as being for the public good if its tendency is to deprave and corruptF Is it li(e
eating a cream ca(e, or too many chocolates 9naughty but nice:F Br is it more li(e those
products of the 9decadent: artistic imagination, as to which the damnably quotable Bscar
Cilde remar(ed
9There is no such thing as a moral or immoral boo(. =oo(s are well written, or badly
written. That is all.:
In R V P,/<8./ B##;7 L-6 (1*61+ C$." LR, !enguin =oo(s@ counsel, argued that since the
purpose of the #ct was to suppress pornography but not to censor literature' it was of
paramount importance to consider the intention of the author. =ut this was shot down by
Kustice =yrne who told the jury
J...it was not the intention of !arliament by that Aection to say, 9Cell, if somebody
who is a s(ilful author is prepared to write filth and write it very well, he will escape
conviction.: Chat has to be established, is that the merits of the boo( are so high that
they outbalance the obscenity so that its publication is for the public good.@
It has been mentioned earlier that the old test of Jdeprave and corrupt@ was vague. The #ct
merely repeats the words and provides no definition. *r Kustice =yrne had to tell the jury
what they meant
J...to deprave means to ma(e morally bad, to pervert, to debase, or corrupt morally.
The words 9to corrupt: mean to render morally unsound or rotten, to destroy the
moral purity of chastity of, to pervert or ruin a good quality, to debase, to defile...just
as loyalty is one of the things which is essential to the well being of a nation, and to
the healthy life if the community...and accordingly, anyone who by his writing tends
to corrupt that fundamental sense of morality is guilty of an obscene libel....@
In R =. S1%9 (1*61+ 1 A&& ER 33, the accused published a periodical, the Ladies $irector%
in order to assist prostitutes to ply their trade, when as a result of the Atreet Bffences #ct,
they were no longer able to solicit in the streets, It was a boo(let of some twenty eight pages,
10
most of which were ta(en up with the names and addresses of women who were prostitutes,
together with a number of photographs of nude female figures' the matter published left no
doubt that the advertisers could be got in touch with at the telephone numbers given and were
offering their services for sexual intercourse, and, in some cases, for the practice of sexual
perversions.
Ahaw contended that, since the persons li(ely to read the Ladies $irector% were persons who
had come to loo( for prostitutes, they would be already depraved and corrupt, so that the
maga+ine would not deprave and corrupt them. The court would have none of this argument
they said that
JThe fallacy in this argument is that it assumes that a man cannot be corrupted more
than once and there is no warrant for this.@
Lord -eid who dissented in the $ouse of Lords, pointed out that there are wide differences of
opinion on how far the law ought to punish immoral acts done in private, that !arliament, not
the &ourts, should decide this, that men will not (now in advance whether their conduct is
going to result in their imprisonment, which will depend on how juries choose to interpret
expressions li(e 9to corrupt public morals.:
Is also worth noting that there was a curious episode in /243 where The *etropolitan !olice
banned a taxi advertisement for a travel agency which depicted two girls in bi(inis, on the
ground that it could be offensive to public morals.
3.3 THE OBSCENE PUBLICATIONS ACT@ 1*64
The /24> #ct created a new offence of being in possession of an obscene article.
# quic( assessment of the wordings and essence of the statute reveals that the #ct gives
greatly increased powers to suppress pornography but does nothing to meet justified
criticisms of the law@s harshness by reputable authors and publishers.
# /241 decision has widened the scope of obscenity under the /212 #ct. The Lord &hief
Kustice held that a boo( entitled Cains &ook by #lexander Trocchi, which contained no
objectionable passages on sex, but which advocated drug5ta(ing, was obscene. This is the
first time that obscenity has been extended beyond matters related to sex, and opens up the
1!
prospect o f a very wide application of the definition of obscenity. The court also held that it
was entitled to hold that the publication was not for the public good, although the expert
witnesses called unanimously testified to its literary merits.
It can also be seen largely that the moral high ground is abandoned when it comes to trade
and commerce. Chen Hurham &ounty ;ducation &ommittee complained about the pin up
girls on chewing gum imported from the ?nited Atates, the =oard of Trade stated that it fell
outside the control of import licences to censor wrappers, and the $ome Bffice ruled that
they were not obscene in the accepted sense.
#cross the #tlantic, the scenario is the same. In #pril )664, the four main ?A television
networ(s and some 766 affiliated stations, sued the Federal &ommunications
&ommission which had recently increased in great measure both the strictness of its
obscenity rules, and the penalties associated with sexual language. The networ(s claim that
the F&& outstepped both its authority and precedent, that the old rules were drafted for a time
when expectations were tighter and choice more limited, that they are hindered by rules not
applicable to the hundreds of other stations available now, and that the changes
were unconstitutional.
3.3 THE KENYAN POSITION
*atters of obscenity in the republic are dealt with by The <enya Film &ensorship =oard
,<F&=8. It was established in the /236s with a regulatory function to ensure that films
screened to the public are in line with the national aspirations and culture. The =oard
discharges its functions as per the Films and Atage !lays #ct &ap ))) of the Laws of <enya.
In )667, the board called on the general public to spea( up and join the fight against
pornography, see(ing to (now the location of these demonic dens and the players in this
industry. *y question to the censorship board is' Jis pornography a malicious act done in the
name of the devilF Br is it simply an exercise of the freedom to express yourselfF@ *ost
Jtraditional@ families frown upon such things, but I dare to say that some of these Jtraditional@
families are buyers of these Jblue movies@. <enya is a state that publicly condemns certain
Jvices@ while secretly indulging in the same, mostly under the cover of dar(ness. Instead of
banning something that will not disappear simply because it is illegal, legali+e it get some
taxes out of it. #nd do the same with prostitution while you@re at it.
2-
In Kune )662, the board further banned a local film titled 9Btto The =loodbath.: In a letter
to Kitu Films, the production house, signed by the board@s &hief ;xecutive Bfficer Havid
!(osing, the board said the film is %too horrific even to an adult%. $e further warned that
any film that induces, incites, justifies or glorifies violence, terror as well as explicit sex and
occultism will not be vetted. Auch will outrightly be banned.
4. PERSONAL PROPERTY
21
This part addresses how the law ought to govern the distribution of personal property the (ey
question being whether the state should force those who have acquired wealth through
legitimate means ,without using force and fraud8 ought to give some of it to those without or
with less.
Libertarians and redistributionists have differing answers to this question. The difference
between the two theories turns on whether the state should force wealthy citi+ens to distribute
their legitimately acquired possessions. There is no controversy in the two theories as regards
property obtained through fraud or the deception with the consensus being that it should be
returned to the rightful owners.
#n example given to distinguish the two theories is that supposing a mucisian say "ameless
puts up a concert with the entrance fee being <shs /666Q5 . Bne million people turn up for the
concert and he is refore acquires a billion shillings. Aupposing that "ameless did not harm
anyone in obtaining the one billion shillings and also that the revellers did not harm anyone
when they each acquired the <shs /666Q5Q , several questions arise should "ameless (eep the
entire one billion shillings or is the state entitled to distribute some of it to help the poor,
disabled and the unemployedF &an it be said to be morally right for him to (eep the one
billion to himselfF Is "ameless at liberty to use the one million as he pleasesF
4.1 L.3,$-%$.%/7
They say that "ameless may rightfully (eep the one billion as people freely gave it to him
and so long as the people initially acquired the cash without using coercion or deception.
They say it would be wrong for the state to ta(e the money, at least for the purpose of helping
the poor.
There is a debate among libertarians about whether the state may tax the rich for purposes of
domestic justice and national defence. There are some Janarcho5libertarians@ who deny that a
state should exist at all and who thin( that all services that the state currently performs should
instead be offered by private firms on a mar(et.
Libertarians also thin( that a person is entitled to (eep a thing if he ma(es it out of unowned
property. For example if he builds a hut on no5man@s land , no person should force him to
share it against his will.
22
In summary the libertarians are of the view that it is not permissible to distribute person@s
legitimately acquired property unless he voluntarily ta(es up the responsibility of giving it up
or assumes an obligation to help others.
4.2 R,6.7-$.38-.#/.7-7
They maintain that the state may force people to distribute their legitimately acquired wealth.
They state that a person@s promise or other voluntary assumption of responsibility to aid
others is not necessary for the state to permissibly distribute the wealth to the poor.
Histributionists disagree amongst themselves on what should be distributed and what should
be distributed. Aome say it is the money that should be distributed while others say that the
state should use the money to acquire resources and distribute it to the poor ,resources having
a technical meaning' those things that are useful in achieving ends such as food, healthcare,
education etc8. Cith respect to the manner of distribution, some distributionists are of the
view that the wealth should be proportionate to what people have contributed to society while
others thin( it be proportionate to how hard people have wor(ed. Bthers say that it should be
distributed equally regardless of input to society or hard wor(.
4.2% W14 6.7-$.38-, -# -1, 2##$>
Bn this part we address the philosophical explanations for and against distribution of wealth
to the poor. #t an international level for example, a multinational pharmaceutical company
may as( J why should we be forced to give drugs to diseased <enya for free or at a reduced
price when we invented the drugs and did not cause their illnessF . Further, should the
distributors ascertain how much should be ta(en from them and how it should be distributed.
a8 L.3,$%&.7"I
The argument being if you do not thin( the state should not enforce a particular sexuality
in people@s bedroom, the state should enforce a specific (ind of charity in a corporate
boardooms. The liberals say that it is unjust for the state to ma(e someone adopt a certain
way of life that others want her to adopt if she is not harming others. Kohn -alws
maintained that liberalism is attractive and stated that people are for maximising certain
liberties and against forcing people to conform to a certain way of life because people
pri+e the ability to ma(e decisions on their own.
23
b8 D.</.-4
*uch of the debate between libertarians and redistributionists appeals to appeals to
competing conceptions of human dignity. For the libertarians treating people with dignity
means not interfering with them unless they have interfered with others. They contend
that it would be nice and decent if people voluntarily decided to help each other and
perhaps even immoral if they did not. $owever, they find it demeaning for the state to
ma(eQforce them do so. They are of the view that it would be respectful if the state
merely as(ed them to help fellow citi+ens or pointing out that they have good moral
reasons to do so.
Illustrations for this are the calls during the post elections violence with calls to help the
IH!s and also the appeal to people in )662 to help the famine stric(en areas.
Libertarians use the analogy between forced labour and redistributive income tax to argue
that the state is not entitled to force people to pay taxes. They say that forced labour
entails ma(ing someone wor( for little or no pay. It would be disrespectful to put a gun to
someone@s head and ma(e him you give you a haircut for free, even if you badly need a
haircut.
Libertarians say that the state is doing something similar to wor(ers when it taxes their
income. If an employee does not pay his taxes, he is threatened with criminal sanctions,
which is analogous to putting a gun to his head. #nd the state is basically ma(ing the
wor(er labour for nothing in return, just li(e ma(ing someone give you a haircut for free.
If an employee is taxed at 36R, then a substantial amount of his labour over the course of
the year is done for the sa(e of others. $e receives no compensation for that wor( as the
state ta(es it and gives it to the poor.
$uman dignity is proposed to be enshrined in the constitution' under section >1 ,/8 of the
$armonised Hraft &onstitution every person has inherent dignity and has the right to have
that right respected and protected. Hoes this dignity extent to the forced labour analogyF
Ce do not entirely agree with this analogy. #s will be discussed below, there are some of
questions arising from the rate of taxation and the manner of use of the taxes in <enya but
some taxation is necessary not only to help the poor directly in terms of provision of basic
needs but also to aid in provision of infrastructureQservices such as transport,
25
communication, education etc not only to those who have contributed but also to the poor
who are not able to contribute to this.
Histributionists have also relied on dignity to defend their conceptions as follows'
Aince people equally have dignity that warrants respect, they must be given an
equal allocation of money. ?nequal shares would signify that those with less are
worth less than the rich.
Treating people with dignity means basing shares on factors which they can
largely control. It would be degrading to let some people have more wealth than
others just because they happen to be born to wealthy parents, luc(y on the stoc(
mar(et or are blessed with beautiful faces that advertisers choose to place on
billboards. They argue that wealth should be distributed according to how much
sacrifice people have made at wor(, a factor over which they have substantial
control.
If this approach was to be applied in <enya, *!s ,whose salaries@ and
allowances@ have been proposed to be increased to close a million shillings
subject to annual reviews 8 would be paid less than primary school teacher whose
average salaries are usually less than <shs )6,666Q5.
Treating people with dignity requires helping in emergency situations, at least
when one can do so with little cost to himself. For example, dignity requires that
you save a child from drowning if you could do so without threatening your life.
They therefore argue that it is appropriate for the state to tax wealthy citi+ens in
order to help the poorer ones avoid death and disability
4.3 I7 K,/4% % &.3,$-%$.%/ #$ % 6.7-$.38-.#/.7- 7-%-,>
Cealth is initially acquired by the mar(et or inheritance. $owever the state collects taxes
through two main areas
Income tax with the more one earns the more his earnings being subjected to taxes.
0alued #dded Tax with consumers being charged /4R of the value of good and
services bought.
2"
The state then uses the taxes to support a variety of domestic programmes for those who
cannot afford such as the free primary education, health and medical services ,the charges in
Dovernment hospitals are usually minimal and services such as immuni+ation are almost
free8, &onstituency Hevelopment Fund and $ousing just to name but a few. The $armonised
Hraft &onstitution proposes to enshrine, inter alia, the following under the =ill of -ights
$ealth ,section 4)8
;ducation,section 438
$ousing ,section 4>8
Food ,section 418
Cater ,section 448
There are however several issues arising from the <enya context such as
The disparity in taxations with *!@s huge per(s of close to a million shillings not
being taxed.
The accountability and transparency in the use taxpayers money examples being the
misuse of &HF and recent debate on misappropriation of the funds allocated for the
free primary education.
Further, should the distributors ascertain how much should be ta(en from them and
how it should be distributedF $ow can this be doneF
Hoes <enya adhere to the rule that all illegitimately acquired wealth should be
returned to the ownersF ;xamples here being the Doldernberg and #nglo leasing
scams and also the recent debate on whether those who Jlegitimately@ acquired titles in
the *au Forest &omplex should be compensated billion of shillings.
In answer as to whether <enya is a libertarian or distributionist state, we are of the view
the clear distinction between the libertarians distributionists is not much of a live issue.
*any people would say that the taxes may be too high and the taxes may not be used for
the intended purposes but it is accepted that redistributive taxation is necessary.
4.4 PRIVATE PROPERTY
This part deals with a related question as addressed in the previous part being the question
of who should control the means of production. Ahould it be the state or should private
individuals be at liberty to control themF Hoes it harm people in morally significant ways
if only a few own large businessesF The means of production in this context mean the
non5human materials that are primarily responsible for a country@s economic output and
2.
consist of primarily large businesses, major natural resources and substantial
infrastructure. Aeveral theoriesQviews answer these question.
%+ C%2.-%&.7"
It maintains that individuals should be allowed to legally own at least a majority of the
means of production. They say by law most of a country@s major economic assets should
be owned by private firms, the primary aim being to maximi+e profit for investors.
&apitalists say that if citi+ens interfered with this production process, then the state should
punish them for theft, trespass or vandalism.
&apitalists differ as to exactly how much of a country@s means of production should be
privatised. It is should be accepted that not all of them should be privati+ed as to will be
chaotic for example if private citi+ens owned roads and citi+ens had to pay each time they
used a certain street.
3+ S#:.%&.7"
The defining mar( of socialism is public ownership of property. Aocialist maintain that
only the whole community may legally own large businesses, substantial natural
resources and important infrastructure. Bn this view, a majority of the means of
production should be the property public institutions, the primary aim of which is to
orient the economy so that it satisfies certain socially defined criteria such as, say
realising an equal distribution of wealth.
4.5 THE KENYAN CONTE'T
Ce are of the view that <enya more of capitalist state with private investors owning most
of the means of production. The last two decades have seen the complete and part
privatisation of state owned institutions such as, <enya -ailways, <enya #irways,
<engen, *umias Augar &ompany Limited just to name but a few.
*ajor businesses Qcorporations are owned by ,few8 private individuals. *ost of the
naturals resources such as land are also owned by few private individuals or corporations.
A$<8",/-7 0#$ %/6 %<%./7- :%2.-%&.7"
E00.:.,/:4
2#
This revolves the argument that capitalism is more efficient than socialism. It is argued that
capitalist economies produce more and better goods at a cheaper cost than do socialist ones.
#lthough capitalism is portrayed as inimical to the interest, the present argument maintains
that the opposite is true.
Aocialist object to this argument by saying that capitalism is not efficient as it might seem.
Aocialist say for example that capitalism includes unemployment as structural feature as
owners of a business have a right to fire wor(ers in order to maximi+e profits. &apitalists
respond that state taxation can allay these effects and provide benefits to those who cannot
find wor(.
Aome socialists concede that some socialist states have been relatively inefficient but blame
this on their autocratic nature and external impediments. ;xamples of such autocratic states
are the former Aoviet ?nion, "orth <orea and &hina. Chat reason would the socialists give
for the failure of states such as Tan+ania that failed without not on these two reasonsF
L.3,$-%$.%/.7"
The second argument is that even if mar(et socialism were as efficient as capitalism, it would
still be morally objectionable. Libertarians argue that socialism wrongly deprives citi+ens of
the opportunity to engage in a production process that causes no harm to others. They hold
that the state should protect a person a person@s right to obtain so much wealth as to own a
company so long as he does not use force or fraud.
Illustrating using the "ameless example given above, suppose that he hires musicians,
releases albums and sells them to consumers and earns a handsome profit and uses his profits
to expand his enterprise, the libertarians say that "ameless Js enterprise should be allowed to
expand for in doing so he has not interfered with anyone@s life. # socialist would however
want the state to confisticate "ameless@s enterprise and ma(e it a public property. Aocialist
say that whether a citi+en is harming others should not be the sole criterion of whether the
state may coerce her and content that libertarianism would at times be disrespectful since it
could mean a serious lac( of freedom for the poor.
&apitalism does not entail libertarianism. If one believes in capitalism, then he does not
necessarily believe in capitalism. &apitalism focuses on proper system of production while
libertarianism focuses opposing improper distribution of wealth.
20
D,"#:$%:4
Bne central argument against capitalism and for socialism appeals to the idea that capitalism
harms people by violating their rights to democratic control over the central aspects of their
lives. !rivate !roperty prevents wor(ers from collectively managing their wor(ing
conditions according to majority rule. This is explained from the view that in a capitalistic
economy, the employer is entitled to order what an employee should do at least eight hours a
day and there is little they can do about it opening them up to possibilities of exploitation.
Aome socialist call this Jwage5slavery@ and find it a degrading (ind of power relationship that
is not qualitatively different from prostitution.
In addition to impairing the economic control of wor(ers, socialists maintain that private
property undermines the political control of citi+ens such that wealthy citi+ens have the unfair
opportunity of influencing political decisions. Bther minor ways of influence is by
politicians sourcing campaign funds from the wealthy, states conforming to donorQfinancial
institutions policies and the media being owned by the rich and determine political agenda. In
these ways, permitting individuals to own large businesses and substantial natural resources
wea(ens a state@s democracy according to the socialist.
&apitalist counter the above argument by contending that state intervention can counteract
any undemocratic tendencies such as through employee friendly laws to deal with
exploitation, at the wor(place, promulgating rules governing what the media should
broadcast and laws forbidding campaign contributions.
P,$0,:-.#/.7"
#nother argument against capitalism and for socialism appeals to the idea that a socialist state
would help people lead better lives. There three limbs to this argument.
Firstly, some socialists believe that the most valuable aspects of a human being are her
abilities to be creative, loving and autonomous. They state that a properly human life is one in
which these capacities are developed and that it would be Jinhuman@ to ma(e a human being
leave these abilities for the sa(e of seeing that she is fed, bathed or mildly amused. In other
words, the state should help citi+ens cultivate their valuable traits.
Aecondly relates to what capitalism must do and what socialism must not. &apitalism requires
a long wor(ing day at the wor( place and during this time, wor(ers are rarely self5directed,
2!
loving or artistic and after wor( they have little to do other than eat, watch T0 and sleep.
This according to socialist is inhuman in the sense that their uniquely human capacities are
stunted. In a socialist system, by contrast wor(ers democratically decide how to reorgani+e
their wor(place so that it develops their capacities of creativity, love and autonomy.
Finally, the argument maintains that one proper purpose of the state is to promote a certain
way of life and to do so in an economic realm. This a perfectionist version of non5liberalism
which states that rather than be neutral among views of good life a just state must ta(e sides
and change the production process so that it promotes a genuinely human life. This view is
one of <arl *arx@s central rationale or socialism.
5. JOHN STUART MILL
Kohn Atuart *ill was the first to recogni+e the difference between liberty as the freedom to act
and liberty as the absence of coercion. *ill offered insight into the notions of soft t%rann%
and mutual libert% with his harm principle' It can be seen as important to understand these
concepts when discussing liberty since they all represent little pieces of the greater pu++le
(nown as freedom.
L.3,$-%$.%/.7" is a term adopted by a broad spectrum of political philosophies which
advocate the maximi+ation of individual liberty

and the minimi+ation or even abolition of the
state. #ll schools of libertarianism support strong personal rights to life and liberty, though
there is disagreement on the subject of private property. The most commonly (nown
formulation of libertarianism supports free mar(et capitalism by advocating a right to private
property, including property in the means of production minimal government regulation of
3-
that property, minimal taxation, and rejection of the welfare state, all within the context of the
rule of law.
Libertarians are committed to the belief that individuals, and not states or groups of any other
(ind, are both ontologically and normatively primary' that individuals have rights against
certain (inds of forcible interference on the part of others' that liberty, understood as non5
interference, is the only thing that can be legitimately demanded of others as a matter of legal
or political right' that robust property rights and the economic liberty that follows from their
consistent recognition are of central importance in respecting individual liberty' that social
order is not at odds with but develops out of individual liberty' that the only proper use of
coercion is defensive or to rectify an error' that governments are bound by essentially the
same moral principles as individuals' and that most existing and historical governments have
acted improperly insofar as they have utili+ed coercion for plunder, aggression, redistribution,
and other purposes beyond the protection of individual liberty.
Denerally, pro5mar(et libertarians focus on the rights of the individual to act in accordance
with the individualEs own subjective values, and argue that the coercive actions of the state
are often ,or even always8 an impediment to the efficient reali+ation of individual desires and
values.
Libertarians also maintain that what is immoral for the individual must necessarily be
immoral for all state agents and that the state should not be above the law.
5.1 !REEDOM
The first (nown use of the word freedom in a political context dates bac( to the )>th century
=&, in a text describing the restoration of social and economic liberty in Lagash, a Aumerian
city5state. ?ru(agina, the (ing of Lagash, established the first (nown legal code to protect
citi+ens from the rich and powerful. <nown as a great reformer, ?ru(agina established laws
that forbade compelling the sale of property and required the charges against the accused to
be stated before any man accused of a crime could be punished. This is the first (nown
example of any form of due process in the history of humanity.
Li(e ?ru(agina, most ancient freedoms focused on ne(ative libert%, protecting the less
fortunate from harassment or imposition.
31
-oman law also embraced certain limited forms of liberty, even under the rule of the -oman
;mperors. $owever, these liberties were accorded only to -oman citi+ens. Atill, the -oman
citi+en enjoyed a combination of positive liberty ,the right to a trial, a right of appeal, law and
contract enforcement8 and negative liberty ,unhindered right to contract and the right to not
be tortured8. *any of the liberties enjoyed under -oman law endured through the *iddle
#ges, but were enjoyed solely by the nobility, never by the common man. The idea of
unalienable and universal liberties had to wait until the #ge of ;nlightenment.
The social contract theory, invented by $obbes, Kohn Loc(e and -ousseau, were among the
first to provide a political classification of rights, in particular through the notion of
sovereignty and of natural rights. The conception of law as a relationship between
individuals, rather than families, came to the fore, and with it the increasing focus on
individual liberty as a fundamental reality, given by %"ature and "atureEs Dod,% which, in the
ideal state, would be as expansive as possible.
Ce shall now loo( at the proper functions and limits of state action in the context of Kustice
and Law and Liberty.
5.2 JUSTICE AND THE LAW: LIBERALS.
Individualistic and classical liberal conceptions of liberty relate to the freedom of the
individual from outside compulsion or coercion.
Liberals hold that it is wrong to punish a person for not conforming to a particular religious
or cultural way of life if heQshe is not harming others. !aternalists and conservatives on the
other hand hold that it can be right to punish a person for living in a way that harms others.
Theories of civil liberty agree that certain behaviors that are harmful to others should be
outlawed. For, instance, where a state exists, justice requires it to outlaw murder. Kustice also
permits the state to prevent minors from self5destructive or inappropriate behavior. The
question is whether the state is entitled to prevent adults from performing actions that do not
harm other people directly. #ctions that do not prevent other people from living as they see
fit.
32
The function of criminal law is to preserve public order and decency, o protect the state from
what is offensive or injurious and to provide sufficient safeguards against exploitation and
corruption of others, particularly the vulnerable either because of their tender age, wea(ness
of body and mind, inexperience or in a state special physical official or economic
dependence.
1
#ccording to the Colfenden -eport, which was co5authoured by !rofessor $.L.#.$art it is
not the function of the law to intervene in the private lives of citi+ens or to see( to enforce
any particular pattern or behavior unless as far as is necessary to carry out the functions of
criminal law as outlined above.
Liberals argue that it is not proper for the law to concern itself with what a man does in
private unless it can be shown to be so contrary to public good that the law ought to intervene
in its function as the guardian of that public good. To empha+ise the personal and private
nature of moral or immoral conduct is to empha+ise the personal and private responsibility
which a mature adult can properly be expected to have without the threat of punishment from
the law.
Liberals thin( that competent adults should have the liberty to engage in actions that might be
self destructive, obscene or degrading so long as these actions directly affects no one besides
those performing them. They argue that neither citi+ens nor the state may use coercion or
force to discourage an individual from doing whatever he pleases in the privacy of her home,
regardless of whether the community finds it imprudent or offensive.
#ccording to liberals it will be universally accepted as a general proposition that the law is
not concerned with private morality or with ethical sanctions, it is plainly concerned with the
outward conduct of citi+ens in so far as that conduct injuriously affects the rights of other
citi+ens.
Kohn Atuart *ill defended liberalism on utilitarian grounds by claiming that it would ma(e
society better5off than any non5liberal alternative. $e contends that since competent adults
generally (now both their interests and how to satisfy them, the most interest satisfaction is
li(ely to result if the state punishes people only when they impair the ability of others to live
as they deem best.
"
:xtract from the *olfenden Report; Home O9ce Report On Homosexual Ofences 6nd
Prostitution,1!"#1
33
Liberals main argument is that the state should treat the dignity of persons with respect. #dult
citi+ens are thought to have dignity if they are free, rational and equal beings.
Kohn -awls proffered many reasons for thin(ing that respect for human dignity requires the
state not to favor one way of live over another. $e argues that it would be disrespectful to
force a person to do something that he could reasonably view not to be worth doing.
#ccording to -awls all religious and cultural conceptions of the good life are reasonably
rejectable. $e argues that since there is no firm or uncontroversial way of deciding between
for instance being an atheist or a theist, a hedonist or an ascetic, the state would be unjust to
force any of these ways life on the life of its citi+ens, whether by using their tax money to
promote conformity or by punishing them for nonconformity.
5.3 JUSTICE AND THE LAW: MORALISTS@ PATERNALISTS AND
CONSERVATIVES.
9..Kust as loyalty is one of the things which is essential to the wellbeing of a nation, so some
sense of morality is something that is essential to the wellbeing of a nation and to the healthy
life of a nation..:
4
9For society is not something that is (ept together physically' it is held by the invisible bonds
of common thought. If the bonds were too far relaxed the members would drift apart. #
common morality is part of the bondage. The bondage is part of the price of the society' and
man(ind, which needs the society, must pay the price.:
.
#ccording to Lord Hevlin, a state which refuses to enforce religious believes has lost the
right to enforce religious morals. It then means that criminal law cannot justify any of its
provisions by reference to the moral law. $e argues that the Atate@s justification of criminal
law without reference to morals can be found in the contention that the smooth functioning of
the society requires that a number of activities should be regulated. The rules that are made
.
<r +ustice %$rne in R 's4 Pen&uin %oo(s =td,1!.11
#
=ord De'lin in De'lin, The :nforcement of <orals ,1!.01
35
for this purpose and are enforced by the criminal law are often designed to achieve
uniformity and convenience and rarely involve any choice between good and evil.
#s stated earlier in this paper, the function of criminal law is to preserve public order and
decency, to protect the state from what is offensive or injurious and the protection of the lives
and the property of the citi+ens. The criminal law in carrying out these functions will
obviously overlap the moral laws. This is simply because the two laws, though in pursuit of
different objectives happen to cover the same areas.
Chat has been accepted as the basis of criminal law is that there are certain standards of
behavior or moral principles which society requires to be observed and that the breach of
them is an offence no just against the person who is injured but against the society as a
whole.
It is therefore argued that if criminal law were to be reformed in order to eliminate from it
everything that was not designed for the 9proper: function of it i.e. to preserve public order
and decency, to protect the state from what is offensive or injurious and the protection of the
lives and the property of the citi+ens, a fundamental principle would be overturned.
Ta(e for instance euthanasia, or suicide, or abortion, or suicide pacts. #ll these are acts which
can be done in private and without offence to others yet they are considered as crimes in
many legal regimes. #s Hevlin puts it the criminal law as we (now it is based upon moral
principle. #s can be seen from the crimes named above, criminal law function in these
aspects is simply to enforce a moral principle and nothing else.
$ence it is the contention of nonliberalism that it is permissible for the state to punish an
adult citi+en for actions that do not significantly prevent others from living as they please. It
maintains that the state should try and promote certain ways of life, specifically those ways of
life that are the most justified or seem so to a majority of voters.
!aternalists believe that citi+ens should be prevented from harming others and also
themselves. Thus the state would be justified in enacting laws requiring use of seatbelts.
,<enyan context5*ichu(i rules8
3"
*oralists or conservatists are concerned with the state see(ing to reduce behavior that is
irreligious or degrading e.g. by enacting statutes that are against prostitution, abortion or
homosexuality.
!erfectionists are of the view that the state can promote intrinsic goods that are unrelated to
the welfare or morality e.g. by using tax money to sponsor artists.
Those who favor the offence principle argue that the state may see( to prevent people from
behavior that is offending others though such behavior may not be necessarily harmful to
others e.g. appearing nude in public.
&ommunitarians are more concerned with the community and they maintain that it is
permissible for the state to encourage actions that accord with social norms or exhibit civil
virtues e.g. by requiring people to vote.
6. A RECAP O! THE MATTERS DISCUSSED AND CONSLUSION.
Bbscenity here will be discussed from the perspective that it curtails freedom of expression.
The $ic(lings case of /747 gave the test of obscenity as being Jwhether the tendency of the
matter charged as obscenity is to deprave and corrupt those whose minds are open to such
immoral influences and to those whose hands a publication of this sort may fall@.
Aection / of the ?.< Bbscene !ublications #ct of /212 provides that an article is obscene if
its effect is ,if ta(en as a whole, such a to tend to deprave and corrupt persons who are li(ely,
having regard to relevant circumstances, to read, see or hear the matter contained or
embodied in it.
Aection > of the same #ct provides that no offence is committed if it is proven that the
publication of the article in question is justified as being for the public good on the ground
that it is in the interests of science, literature, art, or learning or other objects of general
concern.
3.
In the case of - vs. !enguin =oo(s Ltd, !enguin =oo(s was prosecuted for publishing Lady
&hatterley@s Lover by H.$ Lawrence. #t the trial !enguin =oo(@s counsel argued that it was
important to consider the intention of the author since the intention of the #ct was to suppress
pornography but not to censure literature but the court rejected this argument. The point to
note here is that made by *r. Kustice =yrne regarding the meaning of the words in section of
the #ct. $e explained to the jury that 9to deprave means to ma(e morally bad, to perverse, to
debase, or corrupt morally. The words 9to corrupt: mean to render morally unsound or rotten,
to destroy the moral purity or chastity of, to pervert or ruin a good quality, to debase, to
defile..: he held that anyone who by his writings tends to corrupt that fundamental sense of
morality is guilty of an obscene libel.
In Ahaw vs. H!! ,Ladies Hirectory8
7
the accused, Ahaw, published a periodical, the Ladies
Hirectory, in order to assist prostitutes with their trade. $e was charged with publishing an
obscene article in breach of the Bbscene !ublications #ct, /212. The court held that the test
of obscenity laid down in the #ct was whether the effect of the article is such as to deprave
and corrupt persons who are li(ely to read it.
Ahaw contended that since the persons li(ely to readA the article were persons who had gone
to loo( for prostitutes they would be already depraved and corrupt so that the maga+ine
would not deprave and corrupt them. The court in rejecting this argument said that the
argument assumed that a man cannot be corrupted more than once and there is no warrant for
this.
$e was also charged with conspiracy to corrupt public morals on the ground that the
advertisements would induce readers to fornicate and indulge in perversions. ?pholding his
conviction the $ouse of Lords held that it was a crime to conspire to corrupt public morals.
It would appear that the courts in ;ngland upheld the moralistsQconservatist position that it is
permissible for the state to punish an adult citi+en for actions that do not significantly prevent
others from living as they please.
Lord Hevlin was of the opinion that there are no theoretical limits to the power of the state to
legislate against such actions as sedition and treason and as such there can be no theoretical
limits to legislation against immorality. $e throws the liberals argument bac( to them by
0
,1!.216C 22-
3#
as(ing that if one can get drun( in the privacy of their house without necessitating the
intervention of the law, suppose a quarter or even a half of the population got drun( every
night, what sort of society would it beF Br ta(e the <enyan scenario for instance, does liberty
to do whatever one pleases allow them to drin( chan@gaa or some intoxicating liquor which
causes them to turn blindF
$e contends that immorality is for the purpose of the law, that which every right5minded
person is presumed to consider to be immoral. #ny immorality is capable of affecting society
injuriously.
;ven some liberals agree with this in the sense that few would li(e to see actions such as
enslavement or bestiality legali+ed. Set bestiality does not harm and enslavement would be
by consent, meaning then that there would be no Jvictims@ in the liberals@ sense.
The <enyan constitution is vague as it admits both liberal and nonliberal interpretations in
many ways. Chereas it provides for fundamental rights and freedoms of the individual
2
and
for the protection of rights to personal liberty
/6
it has also provided a number of exceptions in
which these freedoms can be curtailed.
//
Aection 42,c8 of the constitution provides for the protection of the privacy of a person@s
home.
=ut it is an offence under the !enal &ode to attempt to procure an abortion
/)
, for a person to
permit a male person to have carnal (nowledge of him or her against the order of nature
/3
or
to engage in incest
/>
.
It is also an offence for males to engage in indecent practices with other males according to
section /41 of the !enal &ode. This would appear to be the definition of what is commonly
(nown as homosexuality.
!
ection .! of the Constitution
1-
ection #1 of the Constitution
11
ection #1,a1 to ,>1 of the constitution4
12
ection 1"0 of the Penal Code
13
ection 1.2c1 of the Penal Code
15
ection 1.. of the Penal Code
30
#ll these are actions that can be performed within the privacy of one@s home. Thus on the one
hand the constitution is guaranteeing right to privacy while the criminal law is ta(ing it away
with the other hand. The !enal &ode appears to be ta(ing a moralist view.
Hoes freedom of religion or association include the freedom of a person to refuse to go to
hospital when they are sic( simply because their religion does not permit people to parta(e
9man5made medicine: and instead calls for prayer in the hope that one is cured by some
miracleF
In conclusion therefore, there is no doubt that there is a sphere of conduct in which the
behavior of individuals must be controlled by the sanctions of the law, in their own interests,
in the interests of others, and in the interest of the society at large on the other hand, there is a
sphere which it is proper to leave to the dictates of individual conscience' that is individual
conscience as fortified by the teachings of religion and the generally accepted standards of
the society in which we live.
3!