An Introduction to Zimbabwean Law

1. What is Law?

1 WHAT IS LAW? The concept of law: A definition Law refers to rules and regulations that govern human conduct or other societal relations and are enforceable by the state. It is the quality of enforceability by the state that distinguishes law from other rules. There are, of course, other rules that govern human conduct such as moral rules, religious directives and organizational rules. These other rules may even be more effective in ensuring compliance with a particular type of conduct. They may even be more acceptable. However, it is not the effectiveness of rules or their goodness/badness that determines the legal quality. It is, in fact, the sole factor of enforceability by the state that determines whether a rule is law or not. It has been said: Although the notion of a system of rules probably corresponds closely to most people’s idea of law, we can soon see that this is not sufficient by itself to be an accurate or adequate account of law, because there are, in any social group, various systems of rules apart from law. How do we distinguish, for example, between a legal rule and a moral rule? In our society, though we consider it immoral to tell lies, it is not generally against the law to do so. Of course, some moral rules are also embodied in the law, such as the legal rule prohibiting murder. Again, how do we distinguish between a legal rule and a rule of custom or etiquette?1 What distinguishes a legal rule from any other rule is that a legal rule is one that is recognized as law and is enforceable by the state. In order to understand the nature of law, reference must be made to 1 What is Law? 2 WHAT IS LAW? the two main theories of law, namely, the natural law theory and the positivist theory. According to the theory of natural law, law cannot be separated from the precepts of morality, justice or fairness. It says that a set of moral principles exists that have validity and authority independent of any human authority. These moral principles, which have a higher status than any human-made rules, constitute what is termed ‘natural law’. Any human-made law that contradicts ‘natural law’ is invalid. In other words, a law that is unfair or immoral, in the sense that it is contrary to natural law, is no law at all. The Latin maxim ‘lex iniusta non est lex’ (an unjust law is no law at all) aptly underscores the main idea of natural law. By contrast, the positivist theory says law is law, regardless of its moral content and regardless of whether it is just or unjust. The positivist theory distinguishes law as it is from law as it ought to be. There is, therefore, such a thing as an unjust law, a bad law, an immoral law, and so on. What law is, is one thing, but its goodness or badness is another. The positivist theory of law is the prevailing doctrine in the definition of law. It is applied by almost every legal system in ascertaining what the law is in any given situation. In other words, when answering the question – what does the law say in this situation? – one does not attempt to establish what is just or morally acceptable in the given situation. Instead, one must simply ascertain the applicable rule of law, regardless of whether it is seemingly just or unjust, fair or unfair, moral or immoral. What matters is whether or not it is a rule recognized and enforceable by the state. If it is enforceable by the state, it is law. South African lawyers H.R. Hahlo and Ellison Kahn neatly captured the nature of law in the following passage: [T]he next question we have to answer is: what distinguishes the law of the lawyer … from other practical laws, such as moral law, the laws of etiquette or the laws of cricket? The answer is that law in the strict sense is the only body of rules governing human conduct that is recognized as binding by the state and, if necessary, enforced. This does not mean that there are no sanctions as far as other practical laws are concerned. There is the conscience of the individual, the pressure of public opinion, social approval or disapproval. But only law in the strict sense is enforced by the courts of law or some other organ...