Zimpapers Logo

Sharon Hofisi Legal Letters
When rules, norms, principles, presumptions or laws are mentioned, one of the issues to consider includes the legal philosophy or tradition to follow.

At the bottom of this is the need to pin down what actually helps the affected person to understand a “legal tradition”, due to the various viewpoints that fall under that rubric.

Essentially, there are critical considerations — critical standpoints and ideas that seem to separate the traditions in some way. Too often, it is admitted here that the application of the law doesn’t seem to appreciate the many traditions of the law (such as normative, legal realism, natural or divine law, and utilitarianism), but instead from legal positivism, which sees the law as “what it is”, not “what it ought to be”.

In any event, when a violation of a legal rule occurs, the affected person or community expects to see justice at the end of the day.

A victim may struggle to understand legal maxims such as “justice must not only be done and so forth”.

At least it is natural for her to feel that way! If the affected party decides to take the matter to the courts of law, she becomes the complainant, the plaintiff, the applicant, the petitioner, or the wronged party, who can institute what are called legal proceedings, a court case, lawsuit, legal claim, action proceedings or application proceedings.

Some people who are not litigious may simply feel like justice means instant justice. This form of justice usually comes in the form of “other” justice such as vigilante justice, mob justice or victor’s justice.

Others will impose instant justice say by “necklacing” the accused (who is also sometimes called perpetrator, wrong doer, misfit in society, respondent, e.t.c  if the matter proceeds to a court of law).

Those who use instant justice do so in pursuit of their earnest desire to appease their injured feelings.

They make decisions using the “spur of the moment”. In most instances, little regard is given to legal dispositions, routes, courses of action, procedures, and so forth, which trained lawyers or police officers are accustomed to. The feeling under those circumstances is simply: “We can’t allow the perpetrator to walk scot free, tits invites tat! Eye for an eye, tooth for tooth.”

Like any other form of justice, mob justice is full of retribution, risks and losses. The community members may be accused of taking the law into their own hands.

They may inflict pain on an “alleged” perpetrator, only to find that there is no evidence to link that person to the offence. Sometimes it is a case of eggshells or spilt milk. Retribution may never even lead to deterrence.

In some situations, the affected people may decide to involve stakeholders in the justice system for several reasons: they know legal rules, they benefited from some public awareness campaigns, they once reported a matter to the police, they were assisted by a certain organisation, they have a relative who knows the law, or they read some legal provision and so forth.

In some cases, the person who goes to court once experienced the whipping winds and rising waters after a legal hurricane or storm. She needs legal assistance or help to deal with a breach, violation, wrong, crime, property wrangle, estate distribution, child or spousal maintenance and so forth.

Here are five traditions to consider when dealing with the world of the law.

Unfortunately, it’s easy for those who enforce, interpret or apply the law to frequently appeal to one or more forms of legal traditions.

Firstly, the natural or divine law tradition will explain rights as given.

Sharon Hofisi is a lawyer and UZ lecturer. Feedback: [email protected]