Demystifying the law: Some thoughts!

Sharon Hofisi Legal Letters
The human search for an all-embracing definition of the law has been evident in all communities of man (as adamah) and has been a subject of debate for most, if not all people in such communities – both those trained in the vagaries of the law, and those untrained but are in many ways affected and fascinated by the law.

“Please leave the law at your office and come home as a father or a husband, a wife or a daughter, a friend and a neighbour,” are some of the concerns that have been raised to lawyers by their kith and kin, siblings, spouses and parents. Here and there, those who are in conflict with the law would be told that the “ignorance of the law is no defence”.

We read in newspapers, or listen to other media platforms such as radio and televisions, that a criminal suspect, is “assisting the police with investigations”.

The truth is that he is the subject of the investigation.

We read that he has been sentenced to life imprisonment. We ordinarily think this means he should die in prison. A caring person who loves birds comes across a strange bird that is terribly in pain, and his conscience tells him, “take it home, dress its wounds!”

A police officer, constitutionally obliged to maintain law and order, meets the caregiver, arrests him and takes him to court – mandatory nine-year sentence is imposed because the bird is a protected species.

Those who have had lawsuits understand that lawsuits have been likened to pigs – you go into them fat, but may come from there very thin. The reverse also holds like a fortified city. No wonder why Paul discouraged lawsuits amongst believers – those bound under deific laws.

Even Jesus instructed those who are accused to negotiate with their accuser on the way to court, lest they be put to a magistrate, and be thrown to a prison. The art of negotiation has been mastered by many – traditionally and legally. Certain rules of negotiation are adopted.

Traditionally, there are laws that are expressed by such phrases like “strike not the messenger”, typically describing the fact that the messenger is only a bringer of news, and those who are offended with the news must deal with the giver of the message.

At times rules have been bent to allow certain ends to be met. People are very careful to avoid the fact that they would have disobeyed the law. You may have heard that: “Don’t break the law, bend the rules!”

Someone is simply trying to warn you not to be in conflict with the law, and the consequences that the law is likely going to use to deal with your conduct.

Even, in biblical parlance, and in salvific argumentation, Jesus Christ is interpreted as the son of a sovereign God who had come to fulfil the divine law and save mankind from their sins. He, however, requires of mortals to believe in him so that they get to be saved under divine law.

Essentially, as part of the purpose of divine law in Christian circles, the point may be made that the Son (child to be gender accurate) of God who became the son (child) of man so that the sons (children) of men would become the sons (children) of God.

Proponents of divine law such as St Thomas Aquinas even went as far as teaching humans who consider religion as part of opium aspects to separate human rationalism from divine revelation.

Other exponents of divine law like St Augustine even used divine law to explain how humans can fight in just wars. His just war theory has led to the emergence of laws or rules on war such as jus in bello and jus ad bello.

Belligerents in a war situation cannot use certain weapons. They are not allowed to attack certain people, even though they are part of the warring parties: prisoners of war, and the wounded.

St Augustine’s just war theory can be buttressed by examples from the Bible.

At one time Elisha the prophet was about to be captured by enemy soldiers. He blinded the whole army.

The king, using hindsight from holy wars, where in war situations, the loot was supposed to be destroyed, asked the prophet what had to become of the soldiers. Elisha told the king to give them food, and send them back to their king.

Isn’t this fascinating?

This is Elisha who was taunted by young boys and a bear mauled three dozens and a half of them. This is Elisha who saw an invisible army which Gehaz his servant had to be prayed for to see a multitude of horses ready to fight on their behalf.

This is the same Elisha who, in his seventh miracle performed in death, a soldier is thrown into a cave. When the dead body met Elisha’s bones, life was restored immediately. Imagine the fear and happiness that simultaneously gripped the “dead” soldier’s colleagues!

Their colleague, who was dead and forsaken, was behind them, rejoining them in battle. Yet Elisha allows enemy soldiers to go away and to continue threatening Israel’s sovereignty.

Wasn’t that the work of divine law legends? John Austin would, like other positivist thinkers, see law as nothing other than the commands of a sovereign which must be obeyed, failure which punishments must be imposed.

Positivists argue that law is “what it is”, good or bad. They are not worried about the “ought” or “should be” of the law as is the case with utilitarian thinkers.

Positivists see the law as meant to maximise pain and minimise pleasure.

Utilitarian thinkers see the law as meant to minimise pain and maximise pleasure. Legal realists will say the law is stable, yet it cannot stand still. It must be reformed and must conform to reasonable standards in a democratic society.

An unjust law to a positivist, for instance, remains law if that law hasn’t been challenged.

The challenge could be on the basis that it is at variance with the Constitution if that it is not reasonable in a democratic society. The positivist thought, however, influences the realist to have the law reformed so that even the views of the utilitarian believer will also be considered.

I believe we all, as mortals, get captivated by the law at some stage of our lives. The law comes into our homes, our relationships, friendships and acquaintances. We all sometimes dream about a way of interpreting the law.

We engage severely in sparkling conversations on several matters of the law: family laws, trust laws, property laws, religious laws and even the supreme law – the Constitution. And we know the conversations and opinions are never going to end. Happily, or not, people will think marital rape is unjust – lobola (roora) or bride price has been paid.

Date rape is unjust – there is problem of interpreting consent in heterosexual relationships. Theft by necessity must be a valid defence – some people do not want to share the little they have.

In ticket cases, the commuter omnibus driver receives money from a passenger. The passengers gives the driver or the conductor some money to be taken from point A to B. Before they reach the intended destination, the passenger receives some message from a relative. He does not want to pay and wants to be left alone.

More tellingly, the commuter omnibus has just left a terminus. It’s peak hour. A few metres from the terminus, the passenger realises that she has left some valuables at the terminus.

She wants to drop off. But the bus crew cannot allow her to do this unless she pays. An argument ensues. All the other passengers shout in unison – “Let her go!” Who has breached the law?

Similarly, the bus stops before reaching the destination. The crew instructs passengers to drop off – they are almost close to the destination. What about the fact that money was paid – contractually for that matter?

So a great many of us always want to find answers from the law. And we also manage to pick some of the laws that we think make our case. Well, someone asked me to explain why some laws are unjust and others are in conflict with their sense of justice.

The person even read to me the key verse in one of the Prophetic books as recorded in the Book of Books, the Bible. Amos spoke about letting justice roll down like waters.

I was at sea with the response at first. I was forced to find the answer from deific law. I found that divine law is largely moralised. But the moral conceptions are as diverse as the biblical followers themselves.

And then the various definitions of jurists and legal scholars who came before visited my mind, which was crisscrossing from verse to verse. The definitions turned out to be my very important tools of interpretation.

“‘I happened to be in theology, I should have done law and I think my arguments on the law are usually sound,” he remarked confidently.

And then the lawyer in me wanted to say something like, “What then happened?” but then as someone who was listening to a religious leader, the layman in me set in.

I dislike being lawyerly all the times, but this time I felt like, “But that is what I am”. I read the book of Amos slowly as if I was reading law for some examination. I learnt that father and son were going after the same maiden. The maiden was the focal point of interpretation.

She was always considered the object of her rights. Never a subject of her rights. Slaves were subjects. Never citizens. Never free people.

So why was the prophet rebuking the father and the son – both were the owners of the slave girl. Fast track to the slave trade close to my world, trade in humans was ended because it was considered to be illegitimate trade. Trade with humans crept in – celebrated as legitimate trade.

I also read somewhere where Amos was rebuking those who were selling the poor “for a pair of sandals”, and the righteous “for silver”.

Again there was retribution as a form of punishment which was allowed in the society that Amos ministered. The poor and the righteous would have failed to settle their debts.

Fast track to our very own Constitution as Zimbabwe, something occurred to my mind. In that world of normative document called the supreme law, I found a provision that aptly stated that no one can be imprisoned simply for failing to fulfil contractual obligations.

And then there were my jurisprudential skills to consider. Given time, and only a religious leader to satisfy, I could request for some time to find a way of speaking to him in a manner that we would all understand the law during Amos’ time.

But we were talking here about just law and the sense of justice, including dealing with the issues that are allowed by the society. I could only think about the reason why someone should not be imprisoned in relation to a contractual relationship.

Chiefly, he does not have criminal liability, we agreed as a people that contracts create civil liability. Criminal law and civil law are branches of law which form part of what is called our legal system. A legal system is simply defined as a system of norms.

Deific law is no different. Israel had been formed as a people. Her God, YHWH, in tetragrammaton terminology, also had other forms of giving freedom to the Israelites.

The pair of sandals was sold for a trifling sum. Human life was also trivialised. No wonder the prophet thought the seller was ripe for divine punishment and the family which indulged sexually with the maiden was profaning the name of Yahweh.

Is there anything so interesting, as spending time trying to answer two simple questions on justice? Well, yes there is, as it turns out. Being confronted with all those practical examples from our life.

Sharon Hofisi is a lawyer and writes in his own capacity. Feedback: [email protected]