JURISPRUDE

NCE NOTES

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NATURE AND VALUE OF THE SUBJECT
The word ‘jurisprudence’ comes from the Latin word Jurisprudentia which is made up of two
words namely, ‘juris’ which means ‘law’ and ‘prudentia’ which means ‘knowledge.’ In other
words, jurisprudence is knowledge about law or the philosophy of law. As regards its nature,
jurisprudence differs in substance from other laws in that it does not deal with a set of legal rules
and principles drawn from authorities to solve practical problems. There have been arguments
that jurisprudence cannot be classified as a branch of law because it covers all branches of law;
the argument is that it is the philosophy of law and each branch of law has its own philosophy.

In a nutshell, jurisprudence answers or attempts to answer the question: ‘what is law? The nature
of jurisprudence can be laid down as follows:

 Jurisprudence looks at the structure, uses and function of law. It defines certain legal
concepts like a right, duty, and justice, among others, which are used in a number of
pieces of legislation;
 Jurisprudence compares the relationship between law and other disciplines. An example
could be the relationship between law and history;
 Jurisprudence also looks at how the law exists and functions in society; and
 Jurisprudence brings essential or common principles of law that exist in different legal
systems. However, it does not make an exhaustive enquiry into each different legal
system. It is general.

Why is Jurisprudence Important?

In terms of the value of the subject, jurisprudence is intent on developing a lawyer with a broader
outlook. Below are some of the reasons why jurisprudence is important:

 It helps lawyers to not only look at pieces of legislation simply/on the surface but also at
their social impact.
 It sharpens one’s own logical techniques and enhances the intellectual horizons of a
lawyer.
 It reduces excessive concentration on legal rules.
 It encourages original thinking.

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THEORIES OF JURISPRUDENCE
A theory is a set of ideas that seeks to explain/justify a phenomenon. Thus, the study of
jurisprudence embodies a variety of theories which seek to explain/justify the phenomenon
(being the nature of the law). These theories include, but are not limited to, the following:

 The Natural Law School of Thought

 The Positive Law School of Thought (Positivism)
 The Sociological School of Thought
 The Historical School of Thought
 The Marxist Theory
 The Realist School of thought

THE NATURAL LAW SCHOOL OF

THOUGHT
In the pre-scientific era, people could not explain certain natural happenings; for instance, the
fact of the earth’s being round could not be explained. As such, facts like these were attributed to
the existence of a force somewhere which controlled these happenings. It was said that
everything on earth was governed by laws emanating from this force. Even the occurrence of
natural disasters and calamities was said to be punishment for failure to obey the natural law of
this force. In later years, this belief came to be referred to as the natural law theory. Natural Law
is so called because it is believed to exist independently of human will. It is ‘natural’ in the sense
that it is not humanly created but rather inherent in the nature of man.

Natural law is, therefore, the philosophy that certain rights and values are inherent by virtue of
human nature and universally cognizable through human reason. A number of philosophers can
be associated with this school of thought. Among them are:

Plato
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 Aristotle,
St Augustine,
St Thomas Aquinas,
John Locke,
Jean Jacques Rousseau.

It must also be pointed out that the medieval era, the reformation, and liberal democracy have
also been associated with this school of thought.

I. PLATO
“…human law is truly law in so far as it conforms to the principles of natural law.”

-Plato

Plato argued that there are certain moral rules which can be discovered by natural reason. One
can ascertain principles of natural law by reason and common sense. He posited that human law
is truly law in so far as it conforms to the principles of natural law. According to him, the
physical manifestation of things in a society is only a representation of what is already laid down
by a superior being, and so humans should not antagonize that set up. He says that if it is natural
for a man to act in a certain way, then he morally ought to act in that way. The behavior of
human beings is already laid down and it is discovered by reason and common sense.

II. ARISTOTLE
…the State should enable man to attain good life for which, by nature, he is destined.

-Aristotle

Aristotle belonged to a class of savants known as the Sophists. These were teachers in ancient
Greece in the fifth and fourth centuries BC. They specialized in one or more subject areas, such
as philosophy, rhetoric, music, athletics, and mathematics. Sophists constantly referred to natural

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law which they construed as absolute and unchangeable. They also argued that it is a duty of
public authorities to recognize this natural law in defining relations between human beings.

Aristotle emphasized that the State should enable man to attain good life for which, by nature, he
is destined. His argument was that for the State to help man to attain this good life, it needs to
use the law as an instrument to that end. Aristotle also defined natural justice as that which was
equal, lawful, and fair. He said equality was not the same in all cases for everyone. He argued
that we are only equal so far as we are compared with another person in the same group or status.
He said men are unequal in both status and virtue; each individual is assigned by this superior
being to a particular role and then he can only compare himself to other individuals with a
similar role.

ROMAN EMPIRE THEORISTS

These were known as Stoic philosophers. In trying to redefine natural law, they argued the
superior being which gave the natural law was one and therefore, there ought to be one system of
law everywhere and applicable to everyone. They argued that human beings are equal regardless
of whether one is king or slave; they said all were created by God (the superior being) and the
same laws must apply to all of them.

THE MEDIVAL PERIOD

This is the period when the church claimed that it was the final interpreter of the truth. The
leaders of the church at that time tried to integrate the teachings of the Greeks and Romans with
the teachings of the church. The notable philosophers for present purposes were St. Augustine
and St. Thomas Aquinas.

a) St Augustine
“…man has become so selfish that he is interested in property…he has created institutions such as
government in order to serve his selfish interests”

He propounded that man had become so selfish that he was interested in property and had
created institutions such as government in order to serve his selfish interests. Man had lost
direction, he argued. Therefore, in order to change the situation, there was need for man to turn

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back to God’s commandments. He argued further that the ministers of the church were the
people who had the ability to know how man needed to conduct himself. He said that even
legislators, before they passed any legislation, needed to get the counsel of the men of God. Any
law enacted in disregard of natural law was not law. He argued that law ought to be compatible
with natural law for it to be law.

b) St. Thomas Aquinas

He postulated that Christianity was the only basis upon which a rational society would exist. He
made three distinctions of natural law:

i.) External law – which he defined as law known only to God but in which man could
participate by exercising his practical reason;
ii.) Divine law – which he defined as directions from God on how men should conduct
themselves. He argued that these directions are contained in the Bible but they could not
be understood by just anyone picking the Bible and reading it; they are best understood
by God’s ministers who had to interpret them to the people;
iii.)Human law – which he defined as law made by secular rulers or authorities. He argued
that human law only qualifies to be law if and only if it is in conformity with external law
and divine law.

THE REFORMATION PERIOD

This is the period when the church lost its authority. Before then, the church was ruling, that is to
say it was equivalent to the State. This loss of authority is attributable to two major reasons:

Moral decay – there were a lot of scandals in the church such as sexual immorality. It
became evident that despite vowing to be celibate, priests were having children; and
Advent of science – when scientists came around, they were able to offer scientific
explanations for certain happenings.

As a consequence, people lost confidence in the church. The first result of this loss of confidence
was the division of the church; Protestantism was born. The second result was that the church
lost its authority of ruling and the power to rule fell into the hands of the ordinary but rich
people. This was the advent of liberal democracy

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LIBERAL DEMOCRACY
The period of liberal democracy associated with the argument that a system of government must
have minimal interference in the private affairs of an individual. The duty of government should
only be to protect life and property of the individual. The two main philosophers associated with
this period are John Locke and Jean Jacques Rousseau. They generally emphasized that human
beings by virtue of being born human beings are possessed of certain natural rights which are
given to them by virtue of being born as human beings. These natural rights cannot be given or
taken away by any authority, they postulated. A closer look at their views is now taken.

a) John Locke: The Social Contract

He said the State should only be there to protect the security of the individual. The individual
should be left alone to carry on his life with minimum interference from the State. He argued that
there is a contract between the State and the individual. The nature of this contract is that the
individual gives as consideration to the State the right to be ruled or governed, and the
consideration from the State is to protect such an individual’s life and property. He said that
when there is failure of consideration on either side, the contract could be terminated; for
example, when the government’s consideration fails, the people have the right to terminate this
contract by voting into office new leaders.

He argued that in practice it may be thought that the government gives to the people these rights
but in reality these rights are given to the people by virtue of their being born human. This
contract between the individuals and government should, if possible, be reduced in writing.
Locke never mentioned this, but this is the beginning of the constitution. The constitution has
been said, though by scholars and not by Locke himself, as being the written contract that Locke
was referring to.

b) Jean Jacques Rousseau

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His writings were inspired by the French revolution. He emphasized equality and liberty.
Rousseau argued that rights and freedoms of individuals should be proclaimed in writing. This
piece of document must be put in the hands of an institution which will ensure that those rights
are respected. He was also the first to propound the principle of separation of powers.

THE NATURAL LAW THEORY IN THE

CONTEXT OF ZAMBIA
In a nutshell, the natural law school theorists say that law is not truly law unless it is in
conformity with the divine directions. Those divine directions contain principles of morality,
ethics, and justice, among many others and therefore, law ought to contain these moral issues. In
other words, according to this school of thought, morality has a place in the definition of law.
There are many aspects of Zambian law in which morality and natural reason at play. They are
discussed below;

I. Article 8 of the Constitution of Zambia (Amendment) Act No. 2 states that one of
Zambia’s national values is morality and ethics.
II. Section 12 of the Subordinate Courts Act and Section 16 of the Local Court Act
require that customary law be in conformity with natural justice and morality for it to be
valid.
III. Most of the Zambian laws appear to mirror biblical principles. For instance, the Ten
Commandments prohibit murder, theft which are also criminalized in the Zambian Penal
Code pursuant to sections 200 and 265 respectively. Further, the Penal Code in section
166 criminalizes Bigamy. The position of the law in Zambia on bigamy is clear in the
decisions of The People v Paul Nkhoma, Durga v Ismail and Sikazwe v The People.
This is in tandem with the theme of monogamy propagated by the Bible and the church.
IV. Morality and natural reason have been used as a justification for the validity of certain
laws. The 2003 Amendment of the Penal Code Act quashes the previously valid penalty
of corporal punishment. It was explained in John Banda v The Attorney General that
corporal punishment had no place in the law because it was degrading, immoral and
unfair. Furthermore, Article 15 of the Constitution prohibits subjecting another to

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 torture and inhumane treatment. It was held in Justin Chimba v The People that torture
or physical force is never moral even if it is from a public authority.
V. Part XV of the Penal Code criminalizes a class of offences known as ‘offences against
morality’. Under this part, Zambian law criminalizes those acts that are construed as
immoral from a Christian perspective. For instance; incest, prostitution, sexual offences,
homosexuality, unnatural sexual acts, etc.
VI. Naturalists such as Aristotle argue that the state has a role to afford man a good life
which, by nature, he is entitled using the law as an instrument. In the context of Zambia,
there is a number of laws that the state uses as instruments to afford man a good life. For
instance, Articles 11 to 32 of the Constitution, collectively known as the Bill of Rights
seek to protect the human rights of Zambians to as to preserve their dignity. Furthermore,
provisions such as the Employment Code Act entitle retired or terminated employees to
terminal benefits (as was held in National Milling v Grace Simataa).
VII. On the flip side, some provisions in Zambian law appear to be in conflict with universally
accepted principles of morality and natural reason. For instance, the death penalty is still
very valid in Zambia pursuant to sections 201 and 294(2) of the Penal Code.

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THE POSITIVIST SCHOOL OF
THOUGHT
The positivist school of thought is directly opposed to the natural law school of thought. It arose
at a time when science was making an impact and the scientific age was no longer satisfied with
the natural law theory. Positivists tried to define law not by its contents but according to the form
or criteria of its formation. There are a number of notable theorists associated with this school of
thought, namely:

John Austin;
Jeremy Bentham;
Hans Kelsen
Fuller and Hart are also considered (but not as philosophers but as scholars who have
written about the positivist school of thought.)

POSITIVIST THEORIES
John Austin

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English legal theorist, John Austin insisted that the concern of jurisprudence should be positive
law; that law should be distinguished from morality and ethics. According to him there are three
major characteristics of law:

 Laws are commands: according to him, commands are expressions of desire given by a
superior to an inferior. When he refers to ‘superior’ and ‘inferior’, he does not refer to
mental capacity but to the fact that there are people endowed with the responsibility of
making the commands;
 These commands emanate from a sovereign; by sovereign he meant people holding
positions in the government; and
 The contravention of these commands should have sanctions; if there is law, there must
be a punishment for failure to comply with it. It is for this reason that he and his disciples
argued that international law is not law because it has no sanctions. There has been one
major criticism leveled against this third characteristic of law as conceived by Austin.
This is that not all laws have sanctions; there are certain laws which encourage certain
things such as education, agriculture, health, and commerce, among others. Also, it is
notable that according to Austin, a sovereign is a body of person(s) in a political society
to whom the bulk of the population is in the habit of giving obedience. However, a
sovereign does not obey anyone above him, and a sovereign exists in perpetuity. By way
of illustration, a given government may end but the State continues; the State is a person
which continues to exist.

Jeremy Bentham
“the purpose of law is to ensure the greatest happiness of the greatest number”

-Jeremy Bentham

The Calculus of Pleasure and Pain

Jeremy Bentham was an English philosopher and jurist who propounded the theory called
Utilitarian Principle. The major reason for formulating his philosophy was to spearhead reform
in the English legal system which he was unhappy with. The belief that the English legal system

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was perfect disturbed him. Bentham was of the view that, certain principles of the English legal
system were a flawed and fallacious. For instance, principles like equality and freedom of
contract were, to him, a fiction. He gave an example of an employer-employee relationship
where he said that the employee enters into that contract with very little choice; he must choose
to be employed on the terms and conditions of the employer or choose to starve. There is no
freedom of contract where the majorities are disadvantaged and enter into contract for survival.

In order to correct the situation, he came up with the principle of utility, otherwise known as the
calculus of pleasure and pain. According to him the purpose of law is to ensure the greatest
happiness of the greatest number. All mankind lives under the empire of pleasure and pain. The
index of goodness or badness is pleasure or pain. Everyone, whether a king or servant is
governed by the need to seek pleasure and avoid pain. He argues that the capacity of any given
act to confer pleasure and avoid pain becomes the measure of its goodness.

Bentham does not accept the traditional tests of goodness or badness based on religion or
morality. Rather the test for goodness or badness should be according to the calculus of pleasure
and pain. Every legal institution or law itself should be tested with reference to the principle of
utility. Lawmakers in the process of enacting legislation should follow this principle of utility in
order to determine whether or not a particular piece of legislation should be passed.

Finally, he argues that there is no such a thing as natural rights. Rights are just a fiction; they are
only rights if they are legal and prescribed by a piece of legislation. Human beings are not born
with rights but just acquire them through declarations, legislation and the creation of the State’s
legal establishment. According to him, a right is that which grows out of the application of the
principle of utility.

This last argument has been criticized. Critics have argued that in fact human beings are born
with certain rights as was held in the following cases.

Nkumbula v. Attorney-General (1972) ZR 111

Nkumbula v. Attorney-General (1979) ZR 267

Kachasu v. Attorney-General (1967) ZR 145

Christine Mulundika and 7 Others v The Attorney General

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Hans Kelsen
“…the real science of law is lost if the province of jurisprudence is mixed with foreign
elements.”

-Hans Kelsen

Hans Kelsen was an Austrian jurist and philosopher who propounded what is known as the Pure
Law Theory. The theory is so called because in his definition of law, Kelsen endeavors to
exclude all elements which he considered foreign to law. His theory of law is only concerned
with that part of the knowledge of the law excluding everything else. He endeavors to free law
from non-legal elements such as ethics, morals, justice, and sociology, among others. He insisted
that the real science of law is lost if the province of jurisprudence is mixed with these foreign
elements.

He argued further that the theory of law should be uniform and applicable equally at all times
and places. He conceived the law as a system of legal norms which are logically united. His
picture of the law appears as a hierarchy of norms. He states that a norm is not valid because of
outside factors but because of another norm which stands behind it. The validity of each norm
depends on another. He says that no matter what proposition of law you begin with, it is
traceable to some other initial norm. He argues that eventually all individual norms are derived
from a basic or initial norm which he calls the grand norm.

The grand norm is the final postulate upon which depends the validity of all norms of any given
legal system. He also calls the grand norm as the initial hypothesis. Kelsen’s argument is that the
grand norm is the basis upon which norms exist and that the grand norm should not be
questioned. He goes further and talks about a revolution. According to him, a revolution is a
situation where the grand norm of a legal system is overthrown in a way not provided for by law.
He argues that a revolution is a situation where the legal order of a community is replaced in an
illegitimate way. He also argues that a revolution, even if initially illegal, will become legal if
successful.

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The Government of Uganda v. The Commissioner of Prisons, Ex Parte Matovu
(1966) EALR 514

In that case, Apollo Milton Obote became prime minister of Uganda in 1962 and in 1966
declared himself the executive president. The 1962 constitution did not provide for an executive
president. However, Obote wrote his own constitution in 1966 disregarding the 1962
constitution. Effectively, he overthrew the 1962 constitution. Pursuant to the 1966 constitution,
he issued emergency regulations under which he declared a state of emergency. Under those
regulations, Chief of the Buganda Kingdom, Michael Matovu was detained. Matovu issued a
writ of habeas corpus. His lawyer argued that the 1966 constitution which Obote had issued was
illegal and invalid because it was issued contrary to the 1962 constitution, and because of that the
regulations issued pursuant to the 1966 constitution were also null and void. It was further
argued that the detention of Matovu pursuant to these regulations was illegal.

Held

It was held that indeed Obote had overthrown the constitution in an illegal manner; and that this
was equivalent to coup d’état. However, the court pointed out, under the new constitution, Obote
successfully established a new legal regime which was in control of the country and had
obedience from a number of the majority of the Ugandans. Note that it is apparent from this
decision that what had happened was that the original grand norm had been overthrown and a
new grand norm put in place; and a grand norm is never illegal. In effect, the court was saying
that the 1966 constitution was legal and the regulations made pursuant thereto were legal and
valid.

Kelsen emphasized that if after a revolution, the government assumed power although contrary
to the legal regime existing at the time, the government is legal and its legal regime valid if that
government is able to establish itself or it is in absolute control or the majority of the people in
that country regulate their conduct or behavior according to the new legal order. The case below
may illustrate this argument.

E. K. Sallah v. The Attorney-General

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The facts of that case are that in 1966, Kwame Nkrumah was overthrown by the military. In
1969, the government handed back power to the civilian government, and the military
government also handed the civilian government a constitution. Section 9 of that constitution
provided that “any person who occupies a position created or appointed on the credence of the
military government would have to leave the position six months after the civilian government
came to power unless they had authority or letter from the new government”.

Sallah was an employee in a statutory body. This body was created pursuant to a Statutory
Instrument of 1961. When the military government took over in 1966 the statutory body
continued. In 1967, while the military was in control, the applicant was appointed to the position
of manager. Six months after the new civilian government took over, Sallah was dismissed from
employment on the basis of section 9 of the constitution. He issued court process, arguing that
his appointment or position did not exist on the credence of the military government because he
was in that position before the military government took over.

Held

It was held that the military coup of 1966 was a revolution as a result of which the entire legal
regime which existed prior to it perished. In respect of Sallah, the court held that the natural
meaning of the words in section 9 of the constitution was that only people who had actually been
appointed by the military should lose their jobs; and Sallah was not appointed by the military and
could as such not lose his job.

THE HART-FULLER DEBATE

The Hart-Fuller debate was an exchange of perspectives that occurred between two proponents
of opposing views. Set in the post Nazi Regime, the discourse was centered on the question of
the appropriate punishment for the Nazis. On one hand, Professor Herbert L.A. Hart, an English
philosopher advocated for positivism while on the other, Professor Lon Luvois Fuller, an
American philosopher advocated for a secular and procedural form of the natural law theory.

a.)Professor Hart

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He defends the positivists’ stand on law. According to him, even the decisions of the courts
which may appear automatic or mechanical are law. He argues that even if judges do not take
into account any moral or ethical issues, the decision rendered by the court stands as law.

b.) Professor Fuller

He started by rephrasing the question of law and morals in terms of order and good order. He
argued that the positivists are mainly concerned with order but that his concern was good order.
Mere order, he says, is not good enough. By good order he meant internal morality. He criticized
Hart for completely ignoring the issue of morality. He insisted that law must represent the human
achievements and as such it cannot be a simple fiat of power or repetitive pattern discernible in
the behavior of State officials. He said there is more to law than the positivists think.

He argued that whereas law may help to achieve order, good order can only be achieved by good
laws. He gave an example of the Nazi legal regime; he argued that going by the positivist theory
of law, the Nazi regime was a valid legal regime. The question he asked was: ‘did that regime
provide good order?’ In conclusion, he said if we really are concerned about the aspect of inner
morality, we cannot call what the Nazi had a legal system.

THE HISTORICAL SCHOOL OF

THOUGHT
The Historical School of Thought emphasizes the importance of history in understanding the
present legal system. Much like the positivist school of thought, this school was also a reaction to
the natural law school of thought. It posits that, law cannot and should not be read in isolation
from history. Law is not an abstract set of rules imposed on society but an integral part of
society. The historical school follows the concept of man-made laws. ‘Law is formulated for the
people and by the people’ means that the law should be according to the changing needs of the
people. We may fail to understand law if we do not understand its historical context because
each legal regime is fashioned by the past.

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This school of thought has a bias towards a term it calls the ‘test of experience’. By this term it
means a legal rule or doctrine which has survived for a long time and has met several
experiences is the best one until the better one is introduced.

There is an argument that even when the old laws are amended we should not throw them away
as they will help us understand the new laws. Therefore, legislators and judges must refer even to
repealed laws in order to come up with laws which are compatible with the culture, traditions
and customs of a particular society.

The basic source of the Historical School of Jurisprudence is the habits and custom of people,
which changes according to their needs and requirements. This school rejects the ideas of
formation of law by judges and the origin from some divine relevance. In the words of Salmond,

“That branch of legal philosophy which is termed historical jurisprudence is the general portion of legal history. It
bears the same relation of to legal history at large as analytical jurisprudence bears the systematic exposition of the
legal system. It deals, in the first place, with the general principles governing the origin and development of law,
and with the influences that affect the law. It deals, in the second place, with the origin and development of those
legal conceptions and principles which are so essential in their nature as to deserve a place in the philosophy of
law- the same conceptions and principles, that is to say, which are dealt with in another manner and from another
point of view by analytical jurisprudence. Historical jurisprudence is the history of the first principles and
conceptions of the legal system.”

Montesquieu
According to Sir Henry Maine, the 1st Jurist to adopt the historical method of understanding the
legal institution was Montesquieu. He laid the foundation of the historical school in France.
Montesquieu argued that it is irrelevant to discuss whether the law is good or bad because the
law depends on social, political and environmental conditions prevailing in society. Montesquieu
concluded that the

“law is the creation of the climate, local situation, accident or imposture”.

He was of the view that law must change according to changing needs of the society. He did not
establish any theory or philosophy of the relation between the law and society. He suggested that
the law should answer the needs of the place and should change according to time, place and
needs of the people.

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Savigny (1779-1861)
“The role of the legislature and judiciary should be to discover the long established customs and
traditions among the people in order to give them legal effect.”

-Savigny

Friedrich Karl von Savigny was a pioneering legal scientist in 18 th century Germany. He is
regarded the father of the Historical school. His main principle of law is that the law of any
people is a reflection of the basic national or tribal character. It is the spirit of the people
expressed in legal form. Therefore, according to him, the failure to come up with a good legal
system can be attributed to the failure to understand a country’s history. He was of the view that
the law of the state grows with the strengthening of the state nationality and law dies or fades
away when nationality loosens its strength in the state.

He further argues that the law is never made but found among the people and their diverse
historical experiences. Laws are not of universal validity but are peculiar to the society that
produces them. Savigny believes that the law cannot be borrowed from outside but should reflect
the common conscience of the people. According to him, it is wrong to import laws from other
societies, owing to their disparities in their historical experiences, usually embedded in their
customs and traditions.

He argued that it is from the traditions and customs of the people that legal rules evolve. The law
should be identical with the opinions of the people. The role of the legislature and judiciary
should be to discover the long established customs and traditions among the people in order to
give them legal effect. He says there should be an emotional attachment with the long established
traditions and customs. His conclusion is that it is wrong to import laws from other societies.

Criticism of Savigny’s View

The views of Savigny were criticized by many jurists including Charles Allen and Professor
Stone

Charles Allen

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Charles Allen criticized Savigny’s view that law should be found or based on the customs. Allen
was of the view that customs are not the outcome of common consciousness of people but of the
interest of a powerful and strong of a ruling class. For example, slavery which was recognized
and prevailed in certain societies by the powerful classes of society.

Prof. Stone

Prof. Stone was of the view that Savigny over emphasized on the consciousness of people and
ignored the efficiency of the legislation and planned law and social change.

THE HISTORICAL SCHOOL OF THOUGHT IN

ZAMBIA’S LEGAL MILIEU
Although the historical school of thought and its arguments belonged to previous generations, the
ideas it set forth can still, in some respects, be identified in contemporary Zambian law. The
following are some of the ways in which this is so.

I. Criminalization of Unnatural Sexual Offences: One of the theory’s central contentions

is that law is a reflection of a society’s basic national or tribal character and a creature of
its historical experiences. A rummage through Zambia’s history, customs and traditions
will reveal that acts of homosexuality, bestiality and any non vaginal penetration has
always been construed as unnatural. As such, section 155 of the Penal Code criminalizes
those acts. This is a reflection of Zambia’s historical experiences as well as its national or
tribal character. This position also appears to be in tandem with Montesquieu’s argument
that it is immaterial to discuss whether the law is good or bad because the law depends on
social, political and environmental conditions prevailing in society.
II. Prevalence of Customary Law: Savigny argues that the law that governs a people should
largely be based on long established customs and traditions among the people. In Zambia,
Article 7(d) of the Constitution provides for the validity of African customary law as a
recognized source of law in Zambia provided that it is not repugnant to natural justice,
good conscience etc. Manifestly, this provision shows that some laws that govern the
Zambian people derive their authority from the long established traditions and customs of
the country. Albeit subject to some limitation, the long established customs still have a

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 place in contemporary Zambian law. Therefore, it can be argued that the duality of
Zambia’s legal system is in harmony with Savigny’s view.
III. The Enactment of New Laws: Montesquieu argues that law must change according to
changing needs of the society. In Zambia, many statutes have been enacted to meet the
changing needs of society. Examples include: enactment of the Anti-Gender Based
Violence Act to address the rise in domestic violence in society; the enactment of the
Gender Equity and Equality Act to address the gender inequality that plagued many
sectors of the country over the years; the enactment of the Employment Code Act to
address the novel issues arising in employment; the enactment of the Cyber Security
and Cyber Crimes Act to address the many issues that have come with society’s new
found reliance on the cyber world.
IV. The Kaniki v Jairus Case: Savigny’s view that the law should be identical with the
opinions of the people is in harmony with the landmark case of Kaniki v Jairus wherein
the court refused to take judicial notice of a custom known as ‘Akamutwe” on the basis
that it was repugnant to natural justice. This can be construed as an instance in which the
position of the law changed due to society’s migration from certain traditions and
practices.
V. Importation of English Laws: the habitual importation of English pieces of legislation in
the Zambian legal system is at loggerheads with Savigny’s argument that it is wrong to
import laws from other societies owing to the disparities in their historical experiences. In
Zambia, Article 7(e) of the Constitution recognizes the English Law (Extent of
Application) Act which provides in section 2 (d) that common law and any statutes in
force in England on any date later than 17 th August 1911 are applicable in Zambia.
Furthermore, Zambian courts are bound to follow all the rules and procedure followed in
England as stated in the 1999 edition of the white book as was held in Ruth Kumbi v
Robinson Kaleb Zulu. It was further stated in that case that English precedents and the
provisions of the white book are legally binding in the Zambian courts. Moreover, it was
held in National Pension Scheme Authority v Milupi & News Diggers Media Limited
that all common law doctrines and principles are applicable to Zambia, and are binding
on all Zambian courts, save for special circumstances. Evidently, this state of affairs
illustrates how Zambia’s legal atmosphere contrasts with Savigny’s idea that law cannot

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 be borrowed from outside because the main source of law is the consciousness of the
people.

, the
interpretation of the law, and the
application of the law should take
into account social factors. Certain
societal interests should be
recognized and given legal interest.
The law is an instrument for serving
the
needs of society.
The real source of law is not the
statutes or precedents as positivists
say but the activities of the society
itself as the law is not immobile but
rather dynamic and living. The
major proposition of the sociological
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school of thought theorists is that the
law in the books is different from
the law in the field. The positivists
are content with the law in the
books, while the sociological
theorists assert that the law in the
field is most
important. They argue that there
should be a sociological study
before the passing of any law. It is
their
contention that the lawyers’ function
should not start with law books and
end with court decisions; lawyers
should widen their perspective of
society in order to be effective.

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The emphasis by this school of
thought is that one should not
merely be content with what the law
is; one
should assess the kind of society he
is in and suggest laws which could
serve the particular society better.
2.3.3 Specific Theories
a) Ihering (1818 – 1892) This
argument is that the success of any
legal process is measured by the
degree
to which it achieves a proper
balance between competing social
and individual interests. There is an
inevitable conflict between social
interests of men and each
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individual’s selfish interests. Man is
in a
constant search for good things in
society; things such as shelter, food,
and pleasure. According to him, the
law should be used to control such
desires but that at the same time the
law should strive to provide equal
opportunity to everyone. He argues
that it is State’s duty to enact
legislation which will balance
individual
interests against social interests.
b) Ehrlich (1862 - 1922) His
argument centers on the impact of
law in society. He looks at the social
basis
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of law. He says the centre of gravity
of legal development does not lie on
the legislative juristic science,
but in the society itself. The law is
derived from social facts and the real
source of the law is the activities
of society itself. The sociology of
law, he argues, must begin with the
living law. By the living law he
meant the way people regulate
themselves in their everyday lives

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THE SOCIOLOGICAL SCHOOL OF
THOUGHT
This school of thought is concerned with sociology which is the science of social order and
progress. Sociology endeavors to discover and observe the patterns of behavior of people in
society. The subject also endeavors to assess the needs of society and looks at the interests of
different groups in society. The theorists associated with this school of thought
include Ihering, Ehrlich and Roscoe Pound.

Emergence of the School of Thought

The rise of this school of thought was largely influenced by the industrial revolution of the
seventeenth (17th) and eighteenth (18th) century. Apart from bringing industrial progress, the
industrial revolution also brought disadvantages such as:

 the exploitation of workers in industries;

 the main aim of an industry being maximization of profits,
 utilization of workers for long hours for very little wages.

At the time of the industrial revolution the State was not involved in the private and social
affairs of the people. It was a laissez faire scenario that existed. However, the situation of
inequalities reached a stage at which it became unmanageable and the state could no longer
watch from the side lines. It became interested in matters of the welfare of the people and
these included health, education and employment conditions.

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 At this stage it was realized that the state could not promote the welfare of the people without
the use of the law. It was realized that society had capacity to change for the better through
the instrument of law.

The Premise of the School of Thought

The sociological school of thought states that the law cannot be read outside the social
context in which it operates. The making, the interpretation and the application of the law
should take into account social factors. Certain societal interests should be recognized and
given legal interest. The law is an instrument for serving the needs of society.

According to this school of thought, the real source of law is not the statutes or precedents as
positivists say but the activities of the society itself as the law is not immobile but rather
dynamic and living. The major proposition of the theorists of this school of thought is that
the law in the books is different from the law in the field. While the positivists are content
with the law in the books, the sociological theorists assert that the law in the field is most
important. They argue that there should be a sociological study before the passing of any law.
It is their contention that the lawyers’ function should not start with law books and end with
court decisions; lawyers should widen their perspective of society in order to be effective.
The emphasis by this school of thought is that one should not merely be content with what
the law is; one should assess the kind of society he is in and suggest laws which could serve
the particular society better.

Specific Theories
a) Ihering (1818 – 1892)

His argument is that the success of any legal process is measured by the degree to which it
achieves a proper balance between competing social and individual interests. There is an
inevitable conflict between social interests of men and each individual’s selfish interests.
Man is in a constant search for good things in society; things such as shelter, food, and
pleasure. According to him, the law should be used to control such desires but that at the
same time the law should strive to provide equal opportunity to everyone. He argues that it is

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2022
 State’s duty to enact legislation which will balance individual interests against social
interests.

b) Ehrlich (1862 - 1922)

His argument centers on the impact of law in society. He looks at the social basis of law. He
says the center of gravity of legal development does not lie on the legislative juristic science,
but in the society itself. The law is derived from social facts and the real source of the law is
the activities of society itself. The sociology of law, he argues, must begin with the living
law. By the living law he meant the way people regulate themselves in their everyday lives.

Roscoe Pound
He starts by saying law is an instrument of social engineering. There are certain interests
which a legal system must consider. He identified three such interests:

i. Individual Interests; those interests which pertain to someone’s personality such as

health, freedom of contract, freedom of belief, and reputation
ii. Public Interests; interests of society to be politically organized in order to maintain
the dignity of the society and protection of such society.
iii. Social Interests; people’s claims to peace and order and safety, security of
acquisition of property and social, economic and cultural progress.

He emphasized that the law should strive to achieve the maximum satisfaction of human
wants or needs; and by human needs he meant the three interests referred to above. His
conclusion is that the rigid confines of jurisprudence should be broken down so that the law
should strike a balance with other disciplines such as sociology and politics. The old
objective of law of merely keeping peace and order should be done away with.

THE SOCIOLOGICAL SCHOOL OF THOUGHT IN ZAMBIA’S LEGAL MILIEU

An interrogation of Zambia’s current legal atmosphere will reveal that social factors have a
bearing on not only the making of the law but also in its interpretation and application The
following are some of the ways in which this is so.

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 I. Establishment of the New Courts: It is one of the major arguments of the
sociological school of thought that legislators ought to assess the kind of society they
are in and suggest laws which could serve the particular society better. With the
recently arisen need to have the constitution upheld and election petitions prioritized,
Article 127 of the Constitution established the Constitutional Court; Article 133(2)
of the Constitution established the Commercial Division of the High Court of
Zambia which is specialized at resolving cases arising from commerce, trade,
industry and any transactions of a business nature. With social issues pertaining to
matrimonial disputes and children on the rise, Article 120(3)(b) of the Constitution
establishes the Family and Children’s Division is a division of the High Court
mandated to offer to the public suitable and expedient justice in family and children’s
matters.
II. Enactment of Laws on Novelties: The contemplation of social factors can be
evidenced in the recent enactment of numerous pieces of legislation that address
social and non-social issues prevalent in the country. Examples include: enactment of
the Anti-Gender Based Violence Act to address the rise in domestic violence in
society; the enactment of the Gender Equity and Equality Act to address the
gender inequality that plagued many sectors of the country; the enactment of the
Employment Code Act to address the novel issues arising in employment; the
enactment of the Cyber Security and Cyber Crimes Act to address the many issues
that have come with society’s new found reliance on the cyber world; and the
enactment of Statutory Instrument No. 22 of 2020 to provide guidance on the
regulations that became inevitable with the advent of COVID-19.
III. The Mulundika Judgement: The interpretation of the law in Zambia especially in
court decisions such as Christine Mulundika and 7 Others v. The People, can be
seen to agree with Roscoe Pound’s postulation that the law should strive to achieve
the maximum satisfaction of human wants or needs. In the Mulundika Case, it can
be argued that the court was trying to strike a balance between the need to maintain
peace and order, and the need for people to freely express themselves when it
declared section 5(4) of the Public Order Act null and void.

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POSSESSION AND OWNERSHIP
In law, there are numerous instances which require the distinction of the concept of possession
from that of ownership. Some of these include:

 When considering an action for trespass, the question of whether the plaintiff was in
possession of the property arises;
 The meaning of the word ‘delivery’ in section 2 of the Sale of Goods Act 1893 points to
the doctrine of possession.

As such, it is important to discuss the doctrine of possession and distinguish it from actual
ownership.

What is the Difference Between the Two Concepts?

While ownership entails the absolute right and legitimate claim to an object, possession has more
to do with physical control of the object/property. As per Salmond, ownership can be described
as the relation between a person and any said object so owned. Ownership involves the absolute
rights and legitimate claim to an object. It means to own the object by the owner. Possession,
according to Salmond, is the de facto relation between a person and an object. In other words, if
a person has apparent control of an object and apparent power to exclude others from the use of
the object, then we can say he has possession. To that end, one can possess something they do
not own. Below are some of the material differences between the two concepts:

 In ownership, the owner has a better claim to that object than anyone else. In possession,
the possessor of an object or property has a better claim to that property than anyone else
except the owner him/herself.

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  The transfer of ownership is a technical and long process and involves conveyance while
the transfer of possession is fairly easier and less technical.
 The owner has the liberty or the right to use and enjoy the benefits of the said object. No
one can interfere with his right to use the object he owns. Possession on the other hand is
not a right, it is just prima facie evidence of ownership.
 Ownership itself gives the owner the right to possession. Possession on the other hand
does not indicate the right to ownership. That is to say, just because one is in possession
of something, it does not mean they are the owner.
 Ownership entitles the owner to exhaust, destroy or dispose of the object while using it
[This right is sometimes restricted by law]. Possession on the other hand does not entail
ownership, thus, a possessor may not have the right to dispose of or exhaust an object
while using it.
 Ownership is for an indeterminate/undefined duration. Possession the other hand lasts for
a limited period.

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LEGAL PERSONALITY
The word person in common parlance is taken to mean a human being. However, in law, human
beings are referred to as natural persons or physical persons. The word person in law
encompasses not only human beings but legal persons too.

NATURAL PERSONS
Natural persons are human beings. These have a legal identity which they acquire from birth.
They are able to do certain things in law such as suing, being sued, owning property, enter into
contracts and so on. Natural personality prima facie denotes legal identity.

LEGAL/JURIDICAL PERSONS
Legal persons or juridical persons refer to human beings or entities that can do things that a
natural person can do in law. These can be human beings with a legal identity or fictitious
persons who do not acquire their legal personality naturally but have it conferred on them by
some legal process. An example of a legal person is an incorporated company. Section 16 of the
Companies Act states that an incorporated company acquires a separate legal status and shall
continue to exist as a body corporate until it is removed from the Register of Companies. In this
instance, this juridical person gets its legal personality by the legal process of incorporation.
The landmark case for the doctrine of separate legal personality is that of Salomon v Salomon
wherein it was held that once a company has been duly incorporated, it becomes a different
person altogether from the subscribers to the memorandum. This entails that a corporate veil
gives a company a separate legal identity under which it has rights and liabilities appropriate to
itself.

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CAPABILITIES OF
JURIDICAL/FICTITIOUS PERSONS
Once a juridical person attains its separate legal identity, it becomes capable of doing certain
things as if it was a natural person. These are;
I. The Ability to Sue and Be Sued: As a legal person with independent existence, a
juridical person can file suits against other persons in its own name and can be sued in its
own name as was held by the Indian Supreme Court in Tata Engineering v State of
Bihar. Further, it was held in Foss v Harbottle that when a company has been wronged,
only it can institute an action.
II. The Ability to Own Property: Fictitious persons can own, enjoy, use and dispose of
property in their own name. Company property will not be considered joint property of
the company and the shareholders. It was stated in Tata Engineering v State of Bihar
that a company’s assets are separate and distinct from those of its members.
III. Perpetual Succession: A juridical person has continuous existence even when the
natural persons who run it come and go. Section 22(a) of the Companies Act states that a
company shall have perpetual succession. Further, it was held in ZCCM v Sikanyika that
a company remains the same entity in spite of total change of ownership.
IV. Ability to be Liable: A juridical person is capable of being personally liable for the
company’s obligations and wrongs.

LIMITATIONS OF
JURIDICAL/ARTIFICIAL PERSONS
Although artificial persons have separate legal identities and can do most of what natural persons
can do, there are still some limitations that characterize legal personhood. These limitations are
as follows.

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 I. A juridical person can only act through natural persons. In fact, the Kabwe High Court in the
case of Jigry Auto works Ltd v M. H. Patel stated that a company, though a body corporate with
a legal personality, can only do things through its officers and organs.
II. An artificial person has no physical existence. Ngulube CJ in the case of BP Zambia Plc v
Interland Motors Ltd describes a company as a metaphysical entity or a fiction of law which
only has legal but no physical existence.
III. An artificial person, unlike a natural person does not have a mind of its own. It may have
separate legal identity but decisions about its welfare are made by the persons who form it.
IV. Unlike a natural person, an artificial person cannot claim certain rights such as human rights as
these are inherent to natural persons.
V. Profits made by artificial persons are ultimately enjoyed by the natural persons who form it.
VI. An artificial person cannot be subject to a custodial sentence as a sanction. Instead, it can lose its
legal personality for impropriety.

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