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SHOULD LAW REGULATE PRIVATE MORALITY?

A private individual may make a moral judgment but it is not the province of the law to do so.
Lord Mallalieu Q.C.
INTRODUCTION
According to natural law theory, whereas most creatures are guided by instinct towards their
purposeful fulfillment humans share in the eternal reason in seeking fulfillment being the
attainment of happiness by giving effect to the higher law through positive law. In this contet
therefore the legitimi!ing factor of positive law is the safeguard of the common good as opposed
to serving private interests of a minority.
"aking into account the aspirational nature of man in seeking fulfillment, private choice is
paramount to the attainment of such purpose and fulfillment. It therefore follows that law simply
plays a facilitative role of coordinating private activities in sustaining public order as opposed to
prescribing private conduct. #atural law theory asserts that all human beings are naturally
endowed with reason. "his buttresses the position of human $udgment in all manner of decision%
making. &uch capacity for $udgment presupposes the freedom of choice and the individual right
to privacy.
RIGHT TO PRIVACY
Lord Mallalieu Q.C. states in R v Brown that it is not in the public interest that private adult
seual behavior be sub$ect to regulation by the law. &imilarly, Lord Mustill in his speech in R v
Brown he identifies the 'uestion of right and wrong in seual morality as a sub$ect of ethical
standards within the bounds of private morality
(
. )e acknowledges the fact that whereas
individual conduct may be repulsively wrong it does not necessarily warrant criminal
prosecution
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. In his assertion of the right of individuals to conduct their private lives undisturbed
by the criminal law
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Lord Mustill observes that individual choice in his life is a right that the
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state should not interfere with
,
. -rom the foregoing, it is evident that individual choice is the
natural upshot for privacy. In the absence of privacy safeguards the notion of the self in analogy
to the private person is offended. In this regard the private nature of seual behavior cannot be
overemphasi!ed.
It is for this reason that the right to privacy is a fundamental inalienable right of human beings
and the protection of the same is a matter of intense public interest. Lord Mallalieu in
appreciating the fundamental nature of the right to privacy observes that the right cannot be lost
but can only be sub$ect to limited derogation where public interest demands
.
.
/ublic interest in this regard is only conceivable if necessary for the protection of the rights and
freedoms of others. )owever, the public interest element in consensual seual activity is
debatable. In other words, the private character of seual activity precludes any public interest
element unless it results in the commission of unlawful acts contrary to public policy.
PUBLIC INTEREST
As a fundamental principle every person0s body is inviolate
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against not only physical in$ury but
against any form of molestation. As such any act whose immediate conse'uence is the infliction
of harm is unlawful
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. It therefore follows that lawful activity but whose conse'uence may inflict
harm such as surgery and reasonable chastisement by a parent do not fall within the general rule
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.
4n the other hand, activities such as circumcision, tattooing, ear piercing and sports are lawful
activities despite the risk of harm, if carried out with consent.
In view of the activities that despite the risk of harm are regarded lawful if carried with consent,
the law cannot therefore punish consensual achievement of seual satisfaction. In view of the
public interest limits on the etent an individual may consent to infliction upon himself by
another of bodily harm, grievous harm resulting from violence for purposes of seual
gratification is unlawful.
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"he preservation of public order and decency, to protect the citi!en from what is offensive or
in$urious and provision of safeguards against eploitation and corruption of others are the
functions of criminal law
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.
4n the other hand every person has a right to deal with his body as he pleases
(6
. )owever, public
interest transcend
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