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Sharon Hofisi Legal Matters —
For the purpose of precision, let me, with alacrity, begin by considering the basic definition of law. Professor Lovemore Madhuku, who is doubtlessly one of the best legal thinkers who can demystify the law, defines law simply as “rules and regulations that govern human conduct or other societal relations and are enforceable by the State”.

The fundamental facets of the law which can be sifted out from the above include, rules, regulations, human conduct societal relations and enforceability by the State. The corollary to this is that the moral or otherwise of human conduct is rationalised using (various) societal relations that form the fabric of a State.

The State, which under the Montevideo Convention (MC) has attributes such as defined territory, population, capacity to enter relations and independence, can also enforce various types of laws. For starters, the Constitution of Zimbabwe does not define a State under the definitions section in Section 332. As a result, I will use the MC classification here.

In Christendom, a term that is descriptively used here for a community or states that believe in the teachings of Jesus Christ, the Bible forms the articles of divine law. The infallibility of the Rhema word gives unction to the Christians. Articles such as scriptura fide allow Christians to dissect the divine law on salvation through Jesus Christ with exegetical exactitude.

Jesus Christ, as part of the Godhead that created mankind, purposely left his cherubic domicile, assumed the form of mortals, and departed this life at Mount Calvary. He is presented as an epitome of the salvific grace for his menfolk.

Correspondingly, the rules and regulations in Christendom are interpreted differently by both the believers and the secular world. Some celebrate Easter as a variant form of Passover-commemorating the crucifixion, death and resurrection of Christ. Some dismiss it as a paganised form of religious regulations. Some even consider Christ to be a mere prophet in the order of other religious figures like Islam’s Prophet Mohammed. Some have even gone further to craft the swoon theory to deny the deific resurrection power of Jesus.

Perhaps, the starting point in the contribution of Jesus to divine law is to be found from prophets like Daniel. In Daniel 6:8, we cognise that divine law has the effect of “altering the law that alters not using the the law that alters not”. Centuries later, Jesus – as part of the Godhead – is presented as part of the deity who cannot change. His precepts cannot change. He remains omnipresent, omnipotent and ominiscent – notwithstanding the fact that humans may consider him to be Michael, another prophet, or some Roman Child’s offspring.

Modern juridical systems observe principles of natural justice (NJ). Equally, the Godhead, observed these principles when he dealt with Adam, the first man to be presented by the Bible as a professional gardener. While the first Adam disobeyed the rules of the garden, and lost Eden; Jesus, the Last Adam, observed the rules of the Godhead when he chose to assume the anthropogenic form in an endeavour to use divine law to justify the lost humanity.

The law of death, which seemed to be incessantly unalterable, was altered by Jesus Christ. Whoever believes in Christ, shall not perish, but shall have eternal life. The Godhead is pleased by one thing – the death of the saints – so affirms the Bible in Revelations. Because the Book of Revelations is dualistic in character, divine law presupposes eternal doom or punishment for sinners.

In observing the NJ principles, Adam was for instance given the right to be heard or the audi alteram partem principle. He was afforded the right to make representations. He pleaded his innocence to the Godhead. He was spared the direct punishment that was subsequently meted out on the woman and the ancient serpent for example. The Godhead took judicial notice of the principle of proportionality by not cursing Adam, and cursing the ground in his place.

Man – as adamah – was battered by sin. He had lost Eden. Jesus Christ, the deific Adam – came to reclaim Eden – the saved Man will live in a new Eden. They will have eternal life in the seventh dispensation in Christendom – the dispensation of divine perfection. In Genesis 3 v 15, a passage that is considered to be the first Gospel or proto-euangelion in Christian circles, Jesus was “the seed of a woman” who would “mash the head of the ancient serpent – the devil”.

When he left his heavenly abode to assume humanity through Mary, Jesus Christ became “the Child of God who became the child of man so that the children of man would become the children of God”. He destroyed the devil, who had come to steal, kill and destroy humanity.

The legal relationship between the Godhead and humans was first explained using the need for humans to understand the Triune personalities of God the Father, Son and the Holy Spirit. The Elohim who said “Let us create…” created man (male and female) in his own image. In legal parlance, Christ annulled everything that was written against humans and nailed it to the Cross – The devil, the chief accuser of humans, was trapped in time by one of the three personalities of the Godhead, during the sixth dispensation – that is the dispensation of grace under Christ.

For starters, God the Father, for instance, had largely seen in the first five dispensations of the seven Christian dispensations that are regulated by biblical time. The devil caused man to break the rules of the first dispensation – of innocence – which existed before man’s fall in Eden. Man then entered into the second dispensation – of conscience – where he was punished and was driven out of Eden.

The devil unleashed more woes on man. The third dispensation – of faith- produced great people such as Enoch, Noah and Patriarchs who began with Abraham. In Christian typology, these figures were types of Christ. Noah for instance, built and Ark following the regulations that were set by God. Compatibly, the whole of Christendom builds its faith around the teachings of Christ. Noah built an ark which saved his family, and Jesus is the ark by which his people can be saved.

Moses who brought the fourth dispensation – of moral law – liberated the Israelites from Egyptian bondage. He gave Israel moral law under the Decalogue. Believably, there are about 639 regulations that are found in the Bible, apart from the Decalogue. Jesus Christ liberated the whole of mankind from the law of sin.

Although the etymological reference to Christians is derogatory in form, Paul the Apostle, himself a trained lawyer describes the eminent role of the divine law when he stated that: “I do not nullify the grace of God, for if justification were by the law, then Christ died to no purpose.”

The Pauline exposition, doubtlessly laid the foundation for critical reflections on the branch of law called divine law, which was born in large part out of, and given legal impetus by philosophical impulses; the vestiges of which can still be seen in law school.

The law curricula is imbued with the teachings of religious philosophers like St Augustine and St Thomas Aquinas. Aquinas wrote about divine law and emphasised the need to distinguish between human reason and divine revelation.Augustine contributed to the Just War theory, particularly to jus in bello and jus ad bello, two most fundamental principles in international humanitarian law.

Interestingly, Christian philosophers contributed to war strategy together with other military strategists such as Sun Tzu who wrote his book “On War”. The divine rules are understood as distinct from positive rules of command in Austin’s lexicon, and natural laws, and so on.

The corollary to the above is simple: lawyers who align with divine law – usually described as moralists or idealists – usually seek to explain the lacuna that exists in law, which lacuna, cannot be explained by naturalists, realists, positivists, and utilitarian jurists.

The utilitarian school – as popularised by jurists like Jeremy Bentham, alternatively, defines law as “what it ought to be”. We may say with Bentham, there should not be a law which criminalises marital rape, because someone paid Lobola. A legal positivist, who sees the law as “what it is”, can be justified when he moves the court to treat a marital rapist in the same manner a stranger rapist can be sentenced to a lengthy prison term.

Divine lawyers may also seek to argue from the position of morality. Moral values, are not positive laws, but Professor Madhuku, argues that they shape the content of law. Divine lawyers may agree with the general concern of natural law thinkers who conceptualise the law using the virtue of justice as fairness. Solum (2006: 86) provides us with the following formula:

A person, P, has the virtue of justice as fairness, V (j-f), if and only if P is disposed to act in accord with the best conception of fairness, F, in situations, S, where fairness provides salient reasons for action. Using the Solum approach above, I may endorse his conception of justice by giving due regard to Christ’s best legal defence for the woman who was caught committing idolatry. The evidence was overwhelming – she was caught in the act of adultery. The punishment was extant – death by stoning. There were eyewitnesses, who served as the jurors, the judges, the prosecutors, and the executioners.

When everything looked macabre, Jesus altered the law using what was found from common sense – he who has not sinned must cast the first stone! He appealed to human reason, using the divine act of forgiveness. He started from the level of humanity, but still proceeded to the divine. Today we have coined an adage – to err is human, but to forgive is divine.

The woman was given a fair hearing. Jesus became the model for the modern judge or administrative authority. Zimbabweans celebrate the right to life in Section 48 of the Constitution. The Jesus model can be used in preserving the sanctity of human right in this regard.

In other passages, Christ even dealt with the attitude of lawyers. He became the divine lawyer, typified by a Samaritan. He served mankind – exemplified by the robbed man. He defeated the devil – the robber. He accepted the problems imposed on man through doctrine – when the Levite and the Priest disregarded the sanctity of human life. He left mankind in the hands of an able Comforter, the Holy Spirit, typified by the inner-keeper.

At the Cross, Jesus became the King of the Jews. The inscription on the Cross made it clear that the whole of the “law is perceived from conditional semantics”. Jesu had become the best attorney defender of human life. At the Great White Throne, the Godhead will dismiss the charges against believers at the close of the devil’s case simply because – Christ paid the debt in full.