We make deep-seated misconceptions about what law is or is not. We have been taught misconceptions in most cases. The real aspects of the law have been treated in froth format. Never like the substance worthy of nuanced discussions.
For starters, different people consider the role of the law differently. Natural thinkers consider the law as given by some deity, force or super being. Humanists focus on the law as a tool for human interaction.
Positivists consider the law to be what it is, whether bad or good. Legal realists think of the law in terms of a reformist agenda. For the latter thinkers, law should be changed to suit practical challenges. Utilitarian thinkers want the law to be used to maximise pleasure and minimise pain.
For their part, each category of thinkers imagines the law in a state of philosophical cogitations, ignoring or abdicating their responsibility to refine the many weaknesses and the various problems faced in a society. As naturalists look at morality and law as fraternal twins, legal positivists lament such conjoining of the two.
As societies agree on moral issues, flex their moral muscles, and flirt with “common” moral codes, morality gradually becomes the law or authorised moral conduct. But strands of thinkers like legal positivists will still argue that “morality is not law” and “law is not morality”.
But that distinction is made difficult by some fundamental misunderstandings the legal positivists make about what constitutes law. Their view of the law is that “law is law whether bad or good”. This leads legal positivists to overestimate their own approach to the law and underestimate the views of others.
Positivists and others who separate law from morality assume that humans have to live under hard rules, given as commands by some higher authority, and such law has to be revered if punishment or threat of punishment is to be averted.
This belief ignores the fact that the moral state of any law is self-driven-that a law’s content is self-correcting and functions best with moralised reasons for promulgating it, of course, as collectively dictated by a society.
Consequently, the law has always produced different lawyers, legal thinkers, and even judges. We have liberal and conservative judges; doctrinaire and activist judges as well as legal realists, positivists and naturalists.
Each category of lawyers or legal thinkers will relax its grip on its philosophy and will start to engage with the other section of lawyers during case analysis, opening up to the need for the existence of a legal system.
The legal system becomes the sum total of the laws that exist in a society. Though laws can be repressive at times, the moral content of the law helps those affected to describe it as bad or good. Many societies misunderstand another society’s interpretation of its laws.
The Communist Party in China may seek to control not just the economic laws, but also laws that speak to the political system. Others in a liberal society may then see China as an authoritarian state, focusing on how China should craft liberal laws.
Deliberate attempts to ignore how societies can legislate their morality can create misalignment of legal views. Many strands of legal thinkers are mistaken in thinking that morality and law are separate.
At a lexicon level, morality refers to the principles that help a society to distinguish between good and bad evil or wrong and right behaviour. We can talk of bourgeois morality to glorify elites and sub-elites. We can talk of the dictatorship of the proletariats.
We can talk of the morality of possessing nuclear weapons. Sometimes we read of how matters boil down to simple morality that innocent prisoners ought to be freed. We can add to this presumptions that are golden such as “better to free 10 guilty men than to convict one innocent person”.
Theocratic societies such as the Abrahamic faiths can easily be used to show how morality is legislated in a society. The Ten Commandments or Decalogue were given to Moses the legislator.
They are the best example of morality-oriented legislation. They made illegal everything that was immoral in a God-governed kingdom. Those who murdered, committed adultery, worshipped other gods and so forth were punished for breaking legislated morality.
All legislators promulgate morality by making it into law. What starts is morality then all laws come. While the question on whose morality may arise, the answer is plain simple: society’s morality. I may try to ask a simple question: which law is not a product of morality?
As humans evolve, perceptions about morality change. We may not progress together when considering change or acceptance of new forms of morality. Some societies may be closed and choose to remain conservative. Some may be open and choose to be responsive to generational developments. But the moralisation of legislation, whether liberalised, will remain.
Let us use corporal punishment or detention as an example. Conservatives will say it’s moral to beat up a child while the law that uses the child’s morality says the child should not be assaulted.
At a surface level, the differences about the propriety or otherwise of corporal punishment make it appear like the law is ahead of humans yet the law has been moralised by a society which collectively moves to protect the rights of a children as right holders. Laws in a conservative society can ignore the worldview that uses universal rights of the child as contemplated by the United Nations Convention on the Rights of the Child or African Charter on the Rights and Welfare of the Child.
Similarly, in championing the rights of animals, morality is used to promulgate laws say on bestiality. It is immoral for a human being to indulge sexually with animals. Even animal-specific laws contain practices that explain conduct that amounts to cruelty on animals. Whether you are an ecologist or not, most if not all happenings, occurrences, events and occasions where environmental or animal laws are made are the result of moralised viewpoints.
For Zimbabwe’s criminal laws, moralised aspects include crimes in our Criminal Law (Codification and Reform) Act such as fraud, rape, armed robbery, kidnapping, unauthorised borrowing, culpable homicide, aggravated indecent assault and so forth. While we may talk of the actual and mental intention to commit a crime, such formulations of intentions border on Zimbabweanisation of morals and crimes.
Those who refuse to live a moral life as dictated by the Zimbabwean society will usually be in conflict with the law. Law becomes a binding rule of conduct which is enforced by those in authority. Morality becomes the rule of conduct that is then given the force of law. The whole of the law becomes part of enforced morality.
Zimbabwean courts, for instance, refused to outlaw the civil wrong called adultery in monogamous marriages, while the crime of bigamy remains in our statute books. This shows that the law wants those who commit to certain moralised marriage arrangements such as monogamy to venerate such legislated morality. Those who enter into monogamous relationships are reminded that bigamy is immoral or unacceptable in Zimbabwe.
Zimbabwe has a mixed or a la carte legal system, which also uses the common law as a source of law. Common law has for years been misconstrued to mean English common law. John Locke who popularised the usage of the common law and cited more than 1 500 verses from the Bible see the law as legislated morality. He was a political Hebraist who proposed nothing new in legal method but recovered the original meaning of Hebraic texts.
Even modern legal or political thought on aspects such as equality, Bill of Rights, government by popular consent, rule of law, right to revolution and others espoused by Locke were all derived from the Bible.
Most legal scholars then chose to venerate classical Roman and Greek etymologies of the law for reasons of choice. Zimbabwean lawyers are usually exposed to Roman and Roman-Dutch laws and never indigenous laws. We need to go back to Lockean interpretation of laws and politics which appreciated that all laws are moralised. To do so, we need legal scholars to faithfully engage in the true conceptual orientation of Locke’s Two Treatises.
All Abrahamic faiths: Christianity, Islam and Judaism have creeds and doctrines that border on legislated morality. Various non-Abraham faiths or secular and traditional approaches proceed from some agreed social norms, mores, ethics, principles and so forth which must not be violated. Such mores can be elevated through Parliamentary deliberations to laws that are either written or unwritten. It is from this context that section 322 of the Zimbabwean Constitution contains various descriptions of what amounts to moralised law.
Effectively therefore, when we say do not circumvent the law, we are forcing you to respect our legislated morality. If you do not uphold the law, sanctions will follow. Together, we’re the last line of defence for all of our moralised legislation.
Hofisi is a transformative transitional justice practitioner, normative influencer and disruptive thinker