Attributes of A Good Legal System

Lecture 2
Introduction to law
MR CHAPONGA NGULUWE
Aims
• Quick recap from last week
• Begin to look at the law and the legal system in more detail
• Address the question of what is the law
• Classify the law
• Examine its purpose and attributes

Concept of the law
• What is the law ?
• It’s the system of rules, a set of rules recognized as commanding or forbidding certain
actions which are intended to regulate the conduct of all persons within a particular
state and are enforceable by the courts
• Otto Kahn-Freund “a technique for regulation of social power
• a rule, usually made by a government, that is used to order the way in which a society
behaves:
Constitution of Zambia
• Provides some guidance as to what law is
• “existing law means all law, whether a rule of law or provision of an Act of
Parliament or of any other enactment or instrument whatsoever ……., having effect
as part of the law of Zambia…..and includes any act of parliament or statutory
instrument made”
• Article 1(3)states the constitution is the supreme law of Zambia and any other law
that does match or is inconsistent with it shall be considered void
Types of law
• National law is the collection of rules that is there to maintain the order and peace in
a state this is also know as ‘positive law,
• The rules of positive law are binding on the individuals and enforced by the state
• How's is it enforced ?
• Sanctions – to make sure that the rules are followed there is some form of punishment
or inconvenient consequence if the rules of the state are broken
• That knowledge has the effect of deterring people from acting contrary to the rules
• Fines , prison , death penalty , corporal chastisement
Types of law
• Rules of national law can be divided into 1) substantive law and 2) law of procedure
• Substantive part sets out the actual rules relating to human conduct
• Procedure deals with the legal remedies and by which means of which the rules are
enforced
• Methods of making national law included passing legislation, judicial decisions and
customs
Classification
• National law which is applicable within a country consists of adjectival and
substantive law
• Substantive law contains the content found in statues, regulations and judicial
decisions made
• Adjectival law is made of rules of procedure which are the means or ways in
substantive law is enforced
• i.e. rules of evidence, civil and criminal procedure
• Substantive law is divided into two parts
• Public and private law
classification
• Public deals with the state itself and includes criminal law and constitutional law
• Whereas private law includes contracts, torts, property law and family
• Lastly the law can be classified into the civil side and the criminal side
• International law
• includes both public and private international law with public dealing with relations
between nations while private deals with the individual disputes that go beyond
national jurisdiction limits [ further reading on this is available in guided reading]
Purpose and attributes of a good legal system
• Certainty • Accountability of the legal system
• Written law • Moral values
• Comprehensive law • Behavioral patterns
• Simple law
• Ideological values
• Understandable law
• Political realities
• Accessible law
•
• Fair and equal treatment
Inexpensive law
• Thorough procedures
• Rapid adjudication
• Flexibility
• There is a lot to look at and consider, last week we looked at the purpose of the law
from a general point of view this goes a little bit deeper than that
• Certainty – the law must be certain it’s a requirement of any mordent legal system
that it is certain
• The law covering theft not only seeks to punish for the act but it also deters the
person by promising to punish them should they commit theft
• Written law- compared to unwritten rules it is better to have laws that are written as
they can safely found by anyone who needs to rely upon them oral rules change from
time to time and place to place therefore society prefer to have written law
• Comprehensive law - Morden legal systems try to ensure that all potential problems
are covered this is desirable if the system is to archive a high level of certainty
• Simple law- the one problem that seems to be common is all systems seems to be
how difficult things are when trying to understand the law
• Because most are looking for certainty through extensive written coverage of every
possible contingency you end with a very complex set of rules that no one really
understands due to the sheer volume of material or laws
• Understandable law – its not enough that the law can be written comprehensive and
simple
• It needs to be relatively understandable to majority of the people who it serves
• Accessible law – the law should be accessible to everyone that’s its trying to serve
• Inexpensive law – a good legal system should be one that is easy and cheap to
maintain in addition to the things mentioned above
• Thorough procedures- the system has to ensure that all disputes are rationally and
fairly resolved therefore it has to be efficient and thorough I its process of dealing
with things
• Rapid adjudication- this is the primary goal for most. However that’s is sacrificed in
favour of thorough procedures and financial constraints
Flexibility- a good legal system must always bend with the wind its must be capable of adaptation
and evolution. Flexibility in law means that is has to be able to change its course from the past
whenever present conditions require it
Accountability for the legal system
Formal elements are necessary for a successful legal system
Moral values
Legal system should try to conform roughly to the values of the society it serves
If not its most likely to be unacceptable to the people
As a result the rules won‘t be respected or obeyed
Part 2
• Recap earlier sessions
• Looking at law and society
• Tutorial 1
• Assignment [to be posted on the e-learning portal]

Law and society
• Law is meant to regulate society in a just way and insure the result is right
• However the law’s relationship with society is a bit more complex
• At the crux of the legal process is the beliefs that the law is a purposive process and its
this process the legal institutions look to maximise
• For this to work the legal system has to be efficient and that in turn will only occur if
most of the social ordering are left to the autonomy of individuals or groups
• The law should only intervene when required

Law and society
• Law is supposed to be applied equally in every situation and to all people it relates to
• Justice in this light is about equality
• Meaning it requires equality of treatment in accordance with rules laid down
• The idea of justice the leads to similar cases being treated the same way
• This in turn has three conceptions
• There shall be rules laying down how people are treated in given cases
• Such rules shall be in general character
• Rules shall be impartially applied
Law and society
• To get the best result for the formal requirements of justice the following have to be
considered
• The deliberate value judgement that certain differences between human beings are not appropriate
grounds for discrimination
• Conferring a certain discretionary power to interpret the laws in the spirit of equity rather than
insisting on their strict letter
• Legal Injustice may arise in a number of ways
• Law maybe be seen as just because it’s the law even though in practice it may be unjust bad fall
short of the ideal
• The other can be when the law is not administered in the spirit that it should with regards to
impartiality
Case examples
• Chibwe v Chibwe, SCZ Judgement No. 38 of 2000
• Divorce case initiated by the husband of the respondent
• parties got married under customary law therefore the court was required to apply
customary law unless it was repugnant to equity, justice or contravened with written
law
• Under Ushi customary law wife was entitled to reasonable share of matrimonial
property
• This law was not applied and no allegations brought forward were proved
• The wife appealed on the basis that the courts were biased to her as a woman
• Appeal was granted
Case examples
• Its paramount for all courts to uphold the constitution and this in turn provides that in
Zambia courts must invoke both principles of equity and law something some judicial
office fail to do
• They must be impartial and fair to all parties
• Customary law is recognised by the constitution provided its application is not
repugnant to any written law
Cases
• Mulenga v Mumbi exparte Mhango (1975)
• Divorce proceedings however Mr Mhango was never party to proceedings before the
subordinate court in kitwe and he was not given the documents regarding appeal
proceedings
• With out being present to be heard the magistrate gave an order that he pay 450
• Judge Moodley stated he found it difficult to understand the decision made by the
magistrate and that such an order should not have been made where the individual in
question is not present
• Anything done otherwise would be a breach of natural law
• Certiorari application allowed (writ to review decision of lower court)
Cases
• ZCCM v Katalayi and Chilongo
• Purchase of a club house by a third party when other members of a clubhouse initially
wanted to buy it
• Once the third party purchased it house the club member refused to move
• Both parties sued ZCCM
• Court found in favour of the club members but ZCCM appealed stating that the third
party was innocent buyer for value
• Appeal was allowed
• Was not possible to ignore the rights of an innocent purchaser for value not
justification to inflict injustice on the third party for the sake of justice for the
appellant

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Lecture 2

• Address the question of what is the law

• Classify the law

• Examine its purpose and attributes

Accountability for the legal system

Formal elements are necessary for a successful legal system

• Recap earlier sessions

• Looking at law and society

• Assignment [to be posted on the e-learning portal]

• However the law’s relationship with society is a bit more complex

• The law should only intervene when required

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