Introduction to Law

WHAT IS LAW?

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. 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 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. 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. 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. Morality is the bedrock of law but it is not law. 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.
How do we determine that a particular rule is recognized and enforceable by the state? The
answer is that for a rule to be recognized and enforceable by the state, and therefore for it is law.

How do we determine that a particular rule is recognized and enforceable by the state? The
answer is that for a rule to be recognized and enforceable by the state, and therefore for it to be
called law, it must emanate from a recognized source. There are five sources of law, namely, the
Constitution, legislation (statutes), common law, custom and authoritative texts. A rule is a rule
of law if – and only if – it can be derived from one of these four sources.

What is a legal system?

A legal system is the sum total of the law of a given society, and includes the way(s) it is made,
how it is enforced and the institutions involved in its making and enforcement.

The purpose & function of law

The traditional approach to the role and function of law is that it has two main purposes, namely,
(i) to do justice, and (ii) to preserve peace and order. These are further divided into the
following:

1. To do justice

Law must serve the ends of justice, and this function is accepted by alllegal systems. The
‘problem’ with justice is that it is difficult to say what justice is. Moreover, what is just for one
person may not be just for another.

2. To preserve peace & order

This is sometimes and mostly regarded as the foremost purpose of law. Man must live in society
if he is to achieve his full development. Society, however, cannot exist without law, for without
rules of conduct there cannot be order, and without order there cannot be peace and progress.
Though debatable, it is clear that a just law is more likely to be observed than an unjust one. An
unjust law invites disobedience and may ultimately lead to disorder.

3. To enforce morality

The dominant view is that law has a legitimate purpose to enforce morality. Differences arise as
to the extent of the use of law in this regard, it being clear that not every moral rule needs to be
enforced by law. It is generally agreed though that law must only enforce morality to prevent
harm to others, but where an immoral act harms no one but oneself, the law must not be involved
(prostitution).

Some characteristics of a good law

Equality: Everyone must be equal before the law despite his/her status in society

Certainty: The rules must be clear and unambiguous, must be declared and known to the public

Uniformity: Law must be applied uniformly without distinction to people of different classes in
society. This overlaps with the principles of equality and certainty

Authority: Laws must have an authority that enforces them. Nationally it is the state while
locally it may be the local authority.

Sources of Law

In Zimbabwe there a number of sources of law that are recognized. According to section 2 of the
Constitution of Zimbabwe, the Constitution is the supreme law of the country and any law,
practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency. The
other sources of law in Zimbabwe are:

1. Legislation
Legislation is also referred to as statutory law and covers those rules of law made directly by the
legislature. Each state has an organ responsible for law-making, and this is what is referred to as
the legislature. The legislative authorities of the state promulgate law in various statutory forms
such as Acts of Parliament, presidential decrees and ministerial regulations. Legislative authority
in Zimbabwe lies in the President and the Parliament.

Parliament is entitled to delegate its law-making powers to the president, his/her ministers, local
authorities and other state institutions which they use to create what is called ‘delegated
legislation’ (subsidiary legislation) that is embodied in specialized legal documents called
‘statutory instruments’. Accordingly, there are two recognized forms of legislation in Zimbabwe:
Acts of Parliament and statutory instruments.

There is a hierarchy within the legislative source of law: the Constitution is supreme and is
followed by ordinary Acts of Parliament and then by statutory instruments.

2. Common law

There are various definitions of common law but as a source of law under Zimbabwean law, the
common law is made up of two components namely:

(i) a collection of rules and principles made by judges of a superior court in previous cases by
applying what may be termed fundamental principles of justice and fairness. Other judges in
lower courts when later faced with similar facts, are supposed to apply the same principles as
pronounced in the previous case. This is called judicial precedent, which is mainly done for
certainty, predictability and uniformity in the law.

(ii) rules and principles contained in that portion of the body of law called ‘Roman Dutch law’
that is not reflected in any previous court decision.

3. Custom:
Refers to rules that have been used in a certain community over a long period of time such that
they have gained the status of law in that community. They are not necessarily written down. In
other words, the community becomes accustomed to regulating its relationship in a particular
way, with many of its members regarding that particular way of doing things as legally binding.
We have general custom and African customary law.

4. Authoritative Texts

These are also valuable for giving interpretations and meaning to certain statutes and common
law which may not be clear. Though these have no inherent authority of their own, they may be
regarded as very persuasive sources of law where neither legislation nor case law is in point, or
where they are explaining a legal point which is not clearly covered in legislation or case law.

Divisions of Law

There are several divisions of the law that can be traced back to the Roman Dutch law. The
major divisions are between Public and Private law.

a. Public and Private Law

This division distinguishes between those laws that apply when the one party is the state against
a private person and when both parties are private individuals. Public law is concerned with the
interests of the public as protected by the state whereas private law deals with the interests of
private individuals against each other. Public law covers constitutional law, criminal law, law of
taxation and administrative law. Here, the state is involved in its capacity as a sovereign power.
Private law covers the law of property, of contract and delict and of persons.

b. Criminal law versus Civil law

A crime is a wrong punishable by the state, and the main object of criminal law is punishment of
the offender(s). A civil wrong is a wrong against another person, and the main object of civil law
is to compensate the victim for the harm suffered. Although a crime is a wrong against an
individual, it is considered a wrong against the state and it is the latter which has the prerogative
of prosecuting. A wrong may be both a crime and a civil wrong. Whereas virtually all crimes are
civil wrongs, the reverse is not the case. Most civil wrongs are not crimes. This also applies at
international level.

c. Substantive and Procedural Law

Substantive law deals with the rights and duties of persons within a society, how rights are
enforced, protected, terminated and remedies available to injured parties eg the rights and
obligations of parties to a contract. Procedural law also known as Adjectival law on the other
hand deals with rules of procedure involved in the application of the law eg law of evidence,
civil procedure, criminal procedure.

The Court Structure in Zimbabwe

1. The Constitutional Court: The last and highest court in the land. It deals with constitutional
matters either on appeal or at first instance.

2. The Supreme Court: This is a superior court of appeal which deals with appeal cases from
lower courts, ie the High Court and also some constitutional matters.

3. The High Court: This is both a court of appeal and a court of first instance and hears all
matters of a higher jurisdiction.

4. Administrative Court: established to deal with government administrative matters such as

determination of water rights, liquor licenses, rent board issues etc.

5. Magistrate Court: These are lower courts of first instance for the majority of cases.

6. Local Courts: refers to community courts presided by Headman and Chiefs and deal with
customary matters.
TWO KEY ELEMENTS OF LAW: LEGAL RIGHT & LEGAL PERSONALITY

With the understanding of law discussed above, it is important to explain two key elements: legal
right and legal personality.

Legal right

A legal right may be defined as ‘an interest conferred by and protected by the law, entitling one
person to claim that another person or persons either give him/her/it something, or do an act for
him/her/it or refrain from doing an act’. A legal right entails either a positive or negative duty on
another. It entails a positive duty when the claim is that the other must perform an act. It is
negative when the other person is restrained from doing an act. In general, this leads to two
groups of legal rights: personal rights and real rights.

Legal personality

Legal rights are enjoyed only by legal ‘persons’. A legal person is defined as ‘somebody who, or
something which, can have legal rights and can also be bound by legal rights. A human being is a
person at law therefore, a legal person (s9 of the Constitution). However, a human being is not
the only person recognized by law but rather it endows other entities with the capacity to acquire
rights and incur obligations. Such other entities are generally referred to as ‘juristic’ or ‘artificial
persons’. A company is the most notable example of a juristic person that has a separate legal
existence from its shareholders and officials.