THE UNIVERSITY OF ZAMBIA

INSTITUTE OF DISTANCE EDUCATION (IDE)

SCHOOL OF LAW
LPR 4920 – JURISPRUDENCE

NAME : CHUNGU MWEWA WENCESLAUS

COMP# : 18052712

LECTURER : COUNSEL ARNOLD KALUBA

COURSE : LPR 4920

TASK : ASSIGNMENT ONE

QUESTION:
CRITICALLY DISCUSS THE JURISPRUDENTIAL PREMISE OF THE NATURAL
LAW SCHOOL OF THOUGHT, AND INDICATE THE EXTENT (IF ANY), TO WHICH
THE SAID THEORY HOLDS RELEVANT UNDER ZAMBIAN LAW.

DUE DATE: 05/07/2022

Declaration: I attest that this is my original work and not a copy. I also attest that any quoted work
has been correctly acknowledged. © Chungu Mwewa Wenceslaus, 2022.
Introduction

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. Facts such as 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. Therefore, this paper will critically
discuss the jurisprudential premise of Natural Law school of thought and it will show the extent
to which this school of thought holds relevant under Zambian law.

Natural Law school of thought

The natural law school of thought developed into a form unmistakably recognizable today as
natural law in the philosophy of the Stoics in the early centuries of the Roman Empire and later
passed into the philosophy of the church where it assumed a religious character. It underpinned
secular philosophy in the sixteenth century, and in the seventeenth and eighteenth centuries it
contributed to the sister doctrine of natural rights.1

The core of natural law thinking is that there are objective moral principles which depend upon
the nature of the universe and are discoverable by reason. According to this theory, these moral
principles are of divine origin; they constitute natural law and are different from and superior to
laws made by mere human beings (positive laws). Being of divine origin, natural law contains
rules governing correct human conduct. These rules are logically connected with immanent
truths concerning human nature and are valid of necessity.2

The naturalist perspective is that a law, in order to be valid, must not only originate in a way that
is legally valid, but must also comply with the unchanging principles of natural law. For John
Finnis, one of the natural law theorists, these principles derive their force from their
reasonableness. Finnis states that:

The principal jurisprudential concern of a theory of natural law is to identify the

principles and limits of the law, and to trace the ways in which sound laws are to
1
L. S. Zimba, The constitutional protection of fundamental Rights and freedoms in Zambia: An
historical and comparative study. A Thesis presented for the Internal Degree of Doctor of
Philosophy in the Faculty of Laws of the University of London, School of Oriental and African
Studies. (London: University of London, 1979), p. 34.
2
Supra, p. 35.

2
 be derived from principles-principles that have their force from their
reasonableness, not from any originating acts or circumstances.3
The natural law school of thought contends that as positive law derives its validity from natural
law, a positive law will be valid if it first originates in a way which is legally valid; according to
the primary method of showing that a rule is valid. But even if a law originates in such a way, it
will fail as law if it is materially unjust, either in its content or in relevant circumstances of
positing.4 According to the naturalists, a law, in order to be valid must not only originate in a
way it is legally valid but it must also comply with the unchanging principles of natural law and
these must be principles that have their force from their reasonableness.5

Therefore, morality occupies a prominent place in natural law doctrine. Natural law is said to
contain the element of morality and this is held out as the guiding principle to which all man-
made law ought to conform. Thus, for man-made law to be valid it is not sufficient that it should
be properly made (i.e. made according to laid down procedures); it must, in addition, be morally
just or acceptable.6 St. Thomas Aquinas (1225-1274 AD) one of the most prominent Christian
philosophers, supporting natural law theory in his Summa Theologia propounded a
comprehensive doctrine of natural law by synthesizing ‘Aristotelean teleology and Christian
dogma’. He classified law into four categories: lex aeterna (eternal law), lex divina (divine law),
lex naturalis (natural law), and lex humana (man-made law).7

In the eyes of natural law theorists therefore, man-made law or positive law is valid law only if it
is consonant with morality. A law is invalid if it is not consistent with morality. The moral test is
consequently the criterion for determining the validity of positive law. For natural law thinkers
therefore, the separation of law from morality is not possible at all. They argue that the moral
quality of law is one of the factors that brings it into being and determines its continued
existence.8 Positivists partially concede the point when they agree that the validity of law is
dependent on a formal criterion plus a minimum moral content.

3
J. Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), p. 351.
4
A. Keating, Jurisprudence 3rd Ed (Dublin: Clarus Press Limited, 2016), p. 06.
5
Supra, p. 06.
6
N. Chirwa, The “is” and “ought” of the law. An obligatory essay submitted to the University of Zambia in partil
fulfillment of the requirements for the award of the Degree of Laws (LLB) (Lusaka: University of Zambia, 2005), p.
25.
7
Supra, p, 12.
8
Keating, supra, p. 31.

3
Relevance of Natural School of thought to Zambian law

One of the ways in which natural school of thought is relevant to Zambian law is through Social
Contract. It is important to note that social contracts are grounded in natural law. 9 John Hobbes,
when advancing his social contract theory, associated natural law with power. The notion of
social contract for Rousseau meant freedom from oppression and the protection of the individual.
Under such a contract, individuals did not surrender their rights to any single sovereign, but
rather to society as a whole and this ensured freedom and equality. He viewed freedom and
equality as civil liberties, and society existed to protect them. Individuals and government were
subject to the general will of society and where government opposed this general will, it may be
overthrown.10Overthrowing the government in Zambian context is done through the ballot.
Therefore, we can rightly say that laws that govern the Zambian electoral process are enacted in
the way that they acknowledge the natural law of social contract. When the ruling party fails to
live the aspirations of the citizens, the citizens are allowed to overthrow it by means of voting.

It may also be argued that the basic law at work in the constitution and as declared in a preamble
by recognising the supremacy of God, is natural law and in particular, the form of natural law
espoused and advanced by St. Thomas Aquinas. St. Thomas, for the purpose of his theory,
categorised law as eternal law, natural law, divine law and human or positive law. Where natural
law is the basic law of a constitution, any enactment of law must not only be made in compliance
with the constitutional provisions, procedures, or methodology for the enactment of law, but the
content of the enactment must also not transgress the precepts of natural law or natural rights
enumerated in the constitution or arising out of the provisions.11

In addition, Article 13 of 1996 Constitution, 12 when dealing with liberty and the exercise of
certain rights, provides that the state guarantees liberty for the exercise of the freedoms and
rights such as freedom of movement and freedom of assembly and many other rights. However,
the enjoyment of the rights is conditional and not absolute, like the right that all citizens shall be
held equal before the law. For instance, the liberty for the exercise of the right of citizens to
freely express their convictions must not be used to undermine the public order, morality or the

9
Supra, p. 240
10
Supra, p. 241
11
Supra, p. 248
12
Constitution Of Zambia (Amendment Act No. 18) of 1996 of the Laws of Zambia

4
authority of the state or the publication of seditious or indecent matter, which is an offence
punishable in accordance with law. The liberty for the exercise of the right to assemble
peacefully may be restricted by the law to prevent or control meetings which are determined by
law to be calculated to cause a breach of the peace, a danger or nuisance to the general public.

Further, there exists a broad territory common to Zambian laws and morality because both are
concerned to impose certain standards of conducts vital for the survival of society, for example,
the general reprobation against theft, murder and immoral behaviour as provided for in the Penal
Code.13 Here positive law is derived from natural law. Moreover, the provisions of the Zambian
Bill of the Rights in the Constitution all have their origin from the Natural Law School of
Thought.14

Finally, the Zambian legal system by virtue of Article 23(3) (d) of the Constitution recognises
the existence of customary law. Thus Zambia is said to practice a dual legal system. In this sense
customary law is also enforceable in Zambia. Despite this, by virtue of the of the decision in the
Mwiya v. Mwiiya15 case decision which was later codified in the Local Courts Act 16 and
Subordinate Courts Act17 “customary law is only enforceable on condition that is not repugnant
to natural justice or morality or incompatible with the provisions of any written law.” These are
all elements of morality and religion being emulated in the law and striking a balance.

Conclusion

Natural Law School of thought is concerned the natural origin of the law from the divine powers.
This school of thought is relevant to the Zambian law as it has influence on the draft of the bill of
rights, the social contract that the government leaders have with the general citizens and the
extent to which citizens enjoy their human rights and well as the extent to which customary law
is respected by the state.

References

Case Law

13
The Penal Code Act Cap 87 of the Laws of Zambia.
14
Zimba, supra, p. 41.
15
Mwiya v Mwiya (1969) Z.R. 126 (H.C.)
16
Section 12 Local Court Act Cap 29 of the Laws of Zambia
17
Section 16 Subordinate Court Act 28 of the Laws of Zambia

5
Mwiya v Mwiya (1969) Z.R. 126 (H.C.)
Statutes

Constitution of Zambia (Amendment Act No. 18) of 1996 of the Laws of Zambia

Local Court Act Cap 29 of the Laws of Zambia

Penal Code Act Cap 87 of the Laws of Zambia.

Subordinate Court Act 28 of the Laws of Zambia

Other Authorities

Chirwa N., The “is” and “ought” of the law. An obligatory essay submitted to the University of
Zambia in partil fulfillment of the requirements for the award of the Degree of Laws (LLB).
Lusaka: University of Zambia, 2005.

Finnis J., Natural Law and Natural Rights. Oxford: Clarendon Press, 1980.

Keating A., Jurisprudence 3rd Ed. Dublin: Clarus Press Limited, 2016.

Philosophy in the Faculty of Laws of the University of London, School of Oriental and African
Studies. London: University of London, 1979

Zimba L. S. The constitutional protection of fundamental Rights and freedoms in Zambia: An

historical and comparative study. A Thesis presented for the Internal Degree of Doctor of