“Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. They govern us in all we do, in all we say, in all we think: every effort we can make to throw off our subjection, will serve but to demonstrate and confirm it. In words a man may pretend to abjure their empire, but in reality he will remain subject to it all the while…”
This was the view proposed by English scholar Jeremy Bentham in his essay: An Introduction to the Principles of Morals and Legislation. The theory of utilitarianism has guided many parliaments for many decades. The proponents of the utilitarian school are of the view that the fundamental principle which should regulate legislative processes should be the preponderance of pleasure over pain. A legislative pronouncement should be constituted in such a manner as to ensure that the pleasure derivable from it prevails over and above any intended pain. In addition to this, the pleasure must be available to a larger number of citizens than the pain. Thus for any law to be considered, it must possess this two-fold quality: preponderance of pleasure over pain; and availability of this pleasure to a greater number of citizens.
This simple test proved to be consistent in the Seventeenth and Eighteenth centuries due to the harmony between law and morals. Law was based though not wholly on morals, but substantially on it. The homogeneity of colonies operating under the utilitarian theory provided a suitable justification for the supposed subjectivity of morals. Legislative pronouncements were therefore based on the prevailing moral standards of the constituency in question.
However, in the Nineteenth Century, man began to broaden his knowledge in obedience to divine injunction. Man’s knowledge of evil increased contemporaneously with his knowledge of good. Morals began to undergo a major revolution. The knowledge that a hitherto forbidden act could be so pleasurable to one led man to reposition his orientation towards law and morals. The knowledgeable man in a bid to ensure his freedom, felt that there had to be a dichotomy between law and morals. This led to a mass divorce of laws from morals. Man relied on the supposed subjectivity of morals as a justification for this dichotomy. The moral code in a province was bound to be different from that of another province under the same legal system. It would therefore had been tantamount to an ‘abuse of legislative processes’ to subject different colonies to a legal code based on divergent moral principles. To do otherwise would demean the supposed uniformity of laws.
Concepts such as liberalism, democracy, freedom, protection of minority rights, etc. sprung up in the Twentieth century, and pulled law further from morals. With man’s increased knowledge of both good and evil pleasures, he learnt how to choose between two necessities. The concept of placing precedence ‘over and above’ was developed. The utilitarian mode of legislation was modified. Legislators when faced with two conflicting choices no longer choose the alternative that would bring ‘the greatest happiness to the greatest number’, but rather opted for the ‘lesser of the two evils’.
Of course, it would not be far-fetched to imply an innate presence of evil in all legislative pronouncements. There is the presupposition of a corresponding evil in all knowledge of good, and man in a bid to understand the dynamics the universe cannot do without finding out both.
Hence, this developed theory of placing precedence on the ‘lesser evil’ is evident in sovereign parliaments today. In Nigeria for instance, child marriage is deemed a lesser evil over recognition of gay rights. In the twilight of the first republic, a united war-torn Nigeria was chosen as a lesser evil over secession. Shielding corrupt government officials is preferred as a lesser evil over exposing them to humiliating public scrutiny. The list of instances when the Nigerian government (both past and present) placed precedence on the ‘lesser evil’ goes on to include removal of subsidy on petroleum products.
Needless to say, the ‘lesser evil’ has often times come into conflict with the ‘greater good’. And the government takes great care to de-emphasize the importance of the ‘greater good’. In 1966, the prospect of secession by the hitherto Eastern Region seemed to preponderate more happiness than pain to a wider number of Nigerians than war. But the all-knowledgeable Gowon-led government felt that it would be safer to opt for the lesser evil, at the cost of hundreds of thousands of sacrosanct lives. In 2012, the Jonathan led administration after realising that sustaining subsidy on petroleum would preponderate more happiness than pain to a wider number of Nigerian citizens chose to opt for the lesser evil of using the subsidy funds for other projects. Inasmuch as exposing corrupt public officials to full public glare would serve a greater good, the helmsmen of government prefer to avoid the embarrassment and loss of confidence this would cost, and prefer the lesser evil of shielding them.
It would be safe to infer that the notion of passing laws which would preponderate the greatest happiness to the greatest number of people no longer holds sway. Especially in a country with a multitudinous population like Nigeria. What a Yoruba man may see as happiness may be viewed as pain by another ethnic group. Even the notion of preponderating the greatest happiness to the greatest number negates the principle of protection of minority rights. The minority which doesn’t benefit from the supposed happiness would definitely cry foul, hence the ‘lesser evil’ theory.
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