Whether the School of Natural Law and Positivism are Anachronistic for the Legal Environment of Zambia
Jurisprudence is a field of study which concerns itself with the nature of law and an attempt to answer the question, what is law? remains a matter of legal scholarship that elicits answers that garner no consensus amongst students, academicians, and legal practitioners, among others. The essence of this essay is to establish whether or not the statement suggesting that the natural law school of thought and positivism are anachronistic to Zambia’s legal milieu is eloquent. The essay will achieve its objective by first describing the natural law school of thought and illustrating how its theories reflect in the Zambian legal milieu. Then, the same approach will be used regards the positivist school after which a conclusion will be drawn.
Jurisprudence, made up of two words; “Juris” and “Prudentia”, is an English derivative of the Latin word “Jurisprudentia” which means law and knowledge respectively. It is the philosophy of law or the science which deals with legal relations. Two of its many schools of thought namely: the natural law school of thought and positivism will be considered in this essay.
The Natural law school of thought contends that nature has intrinsic laws to which man-made law should conform. It argues that since nature, by means of a superior being, has endowed man with inherent rights, enacted law should be premised on morality and guarantee these rights failure of which that law will be invalid as emphasized by the Latin maxim “lex iniusta non est lex” ascribed to Aquinas meaning an unjust law is not a true law. The case of Christine Mulundika and others v The People reflects the relevance of the natural law theory in the Zambian legal milieu as it struck down certain provisions of the public order act that contravened the fundamental freedom of assembly and expression enshrined under articles 20 and 21 of the constitution.
This school of thought advances, among others, concepts such as justice, human rights, equality, equity, rule of law, and morality. Also, it is argued that human rights are independent of government and are inalienable. The Zambian constitution being the supreme law of the land as held in Thomas Mumba v The People embodies tenets of the natural law school of thought by means of Article 8 which outlines morality and ethics, human dignity, equity, social justice, equality, and non-discrimination as the country’s natural values. This position by the constitution sets natural law theories as to the theme of Zambian legal framework as supported by the Bill of rights under Article 11 of the Constitution which enshrines fundamental rights and freedoms of the individual. In section 12 of the Local Court Act and section 16 of the Subordinate Courts Act, the courts are mandated to apply African customary law provided it is not against good conscience and the case of Chibwe v Chibwe emphasized that customary law should not perpetuate inequality.
Subscribing to the naturalist theory that man is endowed with inherent dignity, the Zambian case of The people v Ian Kainda held that corporal punishment amounts to inhuman treatment contrary to Article 15 of the constitution. Additionally, Chapter XV of the penal code criminalizes offenses against morality and this is evident applicability of the natural law theories in the Zambian legal milieu.
Furthermore, natural justice also known as due process or procedural fairness is a key theory advanced by the natural law school of thought used in law “…by judges as a standard of censure by which the exercise of legal authority may be evaluated against moral principles thought either necessarily implied or self-evidently given by the institutional character of the legal power in issue and the scope and impact of the decision being taken.” The Zambian legal milieu is not opposed to this concept as evidenced by the case of Zinka v The Attorney General in which it was affirmed that natural justice is implicit in the principle of fair adjudication and enshrined in Article 18 of the Constitution.
Just as naturalists advocate for morality in law, the Zambian legislation puts moral consideration into perspective in order to realize a law that serves human needs. In Mvula v The People, it was held that juvenile offenders should normally be sent to reformatory schools and not prisons. This decision was based on the moral consideration that juveniles would become hardened criminals if they came in contact with adult hardened criminals in prison. In like manner, section 306 (3) of the Criminal Procedure Code provides in relevant part that no expecting woman shall be subject to a death sentence. This illustrates that the Zambian legal framework affirms that human beings have inherent and inalienable rights including the right to life as argued by the naturalists.
Additionally, Zambian legislation employs concepts of equity in the administration of justice as can be referenced by section 15 of the Subordinate Courts Act which provides that law and equity will be administered concurrently but that the rules of equity will prevail in cases of conflict with the rules of common law. In Hina Furnishing Lusaka v Mwaiseni Properties Ltd, the court held that it has the power to administer equity but that a person seeking the remedy should come with clean hands.
Also, in Zambia, the law regarding the appointment of judges sets the integrity test as a qualification to the office pursuant to Article 141 of the constitution and misconduct is a ground for removal of office as per Article 143 of the constitution. Based on this strength, it is reasonable to establish that the natural law school of thought is contemporary to the Zambian legal system.
Moreover, natural law explains the concept of the social contract in which life is short and brutish due to the selfish interests of individuals. To avert this calamity, people are depicted to have surrendered their rights to a sovereign who would in return offer security and governance to the subjects as consideration. This natural law theory subsists in the Zambian legal milieu in which Articles 61, 90, and 118 of the constitution provide that people vest their legislative, executive and judicial authority respectively in the state as a sovereign in light of Article 4 and exercises this authority through its institutions as per Article 5 (1) of the constitution.
Considering the other school of thought, the positivist school seeks to study the nature of law in an objective manner and its foundational theme is that law and morality are mutually exclusive. This is buttressed by John Austin’s statement which pronounces that “The existence of law is one thing; its merit or demerit is another. Whether it be or be not is another inquiry; Whether it be or be not conformable to an assumed standard is a different inquiry. A law, which actually exists, is a law, though we happen to dislike it, or thought it varies from the text, by which we regulate our approbation and disapprobation.” Based on the positivist assertion that the validity of law is independent of moral considerations, the case of Kufa Miti v the Attorney General involved litigation challenging the constitutionality or validity of the death penalty but the court held that the death penalty could not be challenged as it was entrenched in Article 12 of the Constitution. This establishes the application of the positivist view in Zambia that law is as it is and should be obeyed despite varying beliefs about its morality.
This school of thought posits that the validity of a law is based on its conformity to socially accepted rules or procedures and not morals. Law is regarded as a social construction in which any regulation enacted into law by structured institutions of governance as parliament should be regarded as authoritative despite that law’s ability to achieve ideals such as justice. In the Zambian legal dispensation, article 125 of the constitution impliedly acknowledges judicial precedent, and lower courts should follow the decision in similar facts despite its correctness until such a time when the supreme court reverses its decision as held in Davis Jokie Kasote v the people
Positivism focuses on law in a particular environment and unlike the natural school of thought, positivists esteem the maxim “dura lex sed lex” which identifies that the law may be harsh but it is the law. Zambian rules of procedure emphasize the need to select the right forum or choice of the process when enforcing rights in the courts of law. The case of Miyanda v the High Court illustrates the theory of positivism that holds that law is still law despite its harshness as stated in the case that even though one has a cause of action for violation of rights, the case will fail if it is taken before the courts that do not have jurisdiction. The same theory is evidenced in Miyanda v Chaila in which it was held that you cannot sue a Judge or judicial officer for the manner in which they execute their judicial functions. Despite the inconvenience of inordinate delay of judgment to the petitioner, the court decided to uphold the law as it was that a judge could not be sued in that regard and not according to how the law ought to have been to serve the petitioner.
Positivism views law as a means to achieving order. This positivist view appears in Twampane Mining Co-operative Society Ltd v E&M Storti Mining Ltd, in which it was held that rules of court are intended to ensure order and that those that choose to ignore rules of court do so at their own peril. In order to further the positivist’s aim of understanding and enforcing the law as it is, the case of Samuel Miyanda v Raymond handahu noted that interpretation of all statutes should be construed according to the intention of parliament which passed into law and this is to be achieved by employing the literal rule as the first step in interpreting statutes so as to avoid arbitrary decisions.
To end this discourse, jurisprudence is the philosophy of law and two of its branches are the natural law school of thought hinged on morality as the basis of law and positivism which validates law enacted by a competent body regardless of how that law is perceived. Practical illustration has been made in the essay indicating how the theories of both schools of thought are reflected in the Zambian legal milieu. This essay, therefore disagrees with the assertion that “It is utterly poignant to suggest that the natural law school of thought and positivism are anachronistic to Zambia’s legal milieu” because theories of both schools of thought are contemporary in the laws of Zambia. Further, it is noteworthy that the natural law school of thought holds primacy in the Zambian legal milieu compared to the positivist theories.
- Constitution of Zambia (Amendment) Act, 2016
- Constitution of Zambia, 1991
- Criminal Procedure Code, Chapter 88 of the Laws of Zambia
- Local Court Act, Chapter 29 of the laws of Zambia
- Subordinate Courts Act, Chapter 28 of the laws of Zambia
- The Penal Code, Chapter 87 of the laws of Zambia
- Chibwe v Chibwe 2000
- Benjamin Kufa Miti v Attorney General 2007 unreported
- Christine Mulundika and others v The People (1995-1997) Z.R. 20
- Davis Jokie Kasote v The People (1977) Z.R. 75 (S.C.)
- Godfrey Miyanda v Matthew Chaila (Judge of the High Court) (1985) Z.R. 193 (H.C.)
- Hina Furnishing Lusaka v Mwaiseni Properties Ltd (1983) Z.R. 40 (H.C.)
- Miyanda v The High Court (1984) Z.R. 66
- Mvula v The People 1976 Z.R. 80
- Samuel Miyanda v Raymond Handahu (1994) S.J. 39 (S.C.)
- The People v Ian Kainda HLR/01/2000
- Thomas Mumba v The People (1985) ZR. 38 (H.C.)
- Twampane Mining Co-operative Society ltd v E&M Storti Mining Ltd (SCZ) Judgment No. 20 of 2011
- Zinka v The Attorney General (1990-1992) Z.R. 73 (S.C.)
- Brian Bix, The Natural Law Tradition: Natural law theory p.9
- Christine Marie Patron et al, Legal Positivism; Legal Philosophy (San Beda College of Law, Mendiolla Manila) 1997 p.18
- Christopher Berry Grey, editor (an encyclopedia) The philosophy of law. Vol II (Garland Publishing, Inc. New York & London, 1999) P.573
- Henry Campbell, Black’s Law Dictionary: 4th edition. west publishing co. 1968 P.992
- John Austin, The Province of Jurisprudence Determined, Lecture V (W.E. Rumble ed., Cambridge University Press, Cambridge 1995), p.157
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