Marriage by the law
Marriage is a social union or legal contract whose definition varies according to different cultures. The act of marriage usually creates normative or legal obligations between the individuals involved. The institution of marriage is one that is as old as society itself. It is the bedrock of the family which is described by behavioural sciences as the foundation of society, an agent of socialisation and a basic economic unit (here referred to as the household).
These past two months have seen changes made to this institution via constitutional reviews of a first and third world country, respectively, which have raised strong opinions on the sanctity of this institution. On June 26, rulings by the US Supreme Court on marriage struck down the federal Defence of Marriage Act (DOMA) and let stand a federal court ruling that Proposition 8, a ballot proposition and constitutional amendment in California, limiting marriage to one man and one woman was unconstitutional. On July 16, the Nigerian Senate Constitutional Review Committee resolved to alter Section 29 of the constitution which stipulates that a woman shall not be qualified for marriage until she attains eighteen years of age (the institutionalised age of adulthood) by deleting the marriage age specification for women from the draft constitution and leaving the marriage age for women open.
The reasons behind both regulations are based on collective desires or considered judgments on the part of a significant segment of society with a view to eliminating or enhancing opportunities for the formation of diverse preferences and beliefs. These regulations aimed to increase (or reduce in terms of context) social subordination of various social groups. The problem with these regulations is the conduct borne out of these constitutional decisions may result in outcomes from which future generations may not recover at all.
Suffice to say these issues are not in any way new to society. The first laws in modern times recognising same-sex marriage were enacted during the first decade of the 21st century. Child marriage and child betrothal customs are fairly widespread in Africa, Asia, South America and, in former times, Europe.
The changes made were significantly based on each country’s culture and core beliefs. It should be noted that these beliefs stem from religion and social evolution alike. Given the presence of diverse cultural backgrounds, religions and social groups present in both countries, the creation of laws that are generic and allow for justice and equality for all its citizens is no easy feat, yet this herculean task has been assigned and must be carried out as judiciously as possible within the standardised bureaucracy.
Laws are created to protect people. They are created to preserve individual rights and guarantee harmonious living amongst those within the rule of law. They ought not to leave particular interest groups vulnerable or create avenues for oppression.
According to the United Nations, the rule of law is defined as a principle of governance in which all persons, institutions and entities, public and private including the state itself are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated and which are consistent with international human rights, norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.
The rule of law over a nation is to improve the conditions of the citizenry. The focus is on security of lives and property, improved living standards, increased opportunities to achieve economic and political freedoms. The rule of law, also known as “nomocracy”, generally refers to the authority and influence of law in the society, especially as a constraint upon behaviour.
The question to be asked is: how do these decisions affect the well-being of those affected – the possible increased rate of maternal mortality, the possibility of increased spread of STDs (sexually-transmitted diseases), or the possible downward movement of the educated population? Will these decisions affect the future treatment of the youth population given other systems? Will increased social freedom be abused in the future? How will changes in moral perspectives affect levels of productivity, creativity and discipline in relation to individual economic output? Are the possible financial and economic outcomes fully considered when constitutional decisions are taken concerning this basic economic unit?
The use of arbitrary power by an individual or group needs be restrained in the creation or review of laws. The law ought not to be a mere tool of government to suppress in a legalistic fashion. The institution of marriage and the individuals affected by this institution should be protected by the law.
Apakama writes from Lagos.
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