Authored By: Malumbo Mugala
University of Zambia
Law can be defined using three schools of thought: the Positivist, the Realist, and the Naturalist school of thought. The Naturalist school of thought derives law from morality, holding that unjust laws are not true laws. As stated in the literature, “Law is a system of norms in that it sets or describes standards and rules of human behaviour which should be followed and it thus consists of rules and standards.”1 Realism, on the other hand, is a school of thought grounded in what judges decide in their judgements. Jerome Frank defined law as what a judge decides as to a particular situation.2 Positivism is a school of thought that sets aside morality and focuses on written rules. Kelsen viewed law as a coercive order of human behaviour, stating that laws “command a certain human behaviour.”3 This essay argues that legal positivism offers significant benefits in terms of certainty and the rule of law, but that its uncritical application — as demonstrated by the atrocities of the Nazi regime — reveals the necessity of integrating moral considerations into the law-making process. This essay will highlight both the positive impact and the dangers that positivism has had on society.
POSITIVE IMPACTS OF APPLYING LEGAL POSITIVISM IN LEGAL PRACTICE
Promotion of Legal Certainty and Predictability
Legal positivism helps make laws predictable and clear. This is made possible by having laws written in statutes that are understandable. One attribute of a good legal system is that law must be written.4 The whole essence of positivism is to have laws that are recognised; written laws make them easier to understand. Statutes such as the Penal Code contain such written laws. An example is Section 292, which addresses the offence of robbery. It states that a person who steals anything, and at or immediately before or immediately after the time of stealing it, uses or threatens to use violence against any person or property — to obtain or retain the thing stolen or to prevent or overcome resistance — is guilty of the felony of robbery and is liable on conviction to imprisonment for fourteen years.5
This section states in clear language that adding force to the crime of stealing in order to gain or retain property, or using force to intimidate or cause harm, is punishable, regardless of how justified a person believes his actions to be. In the case of R v Robinson, the defendant was owed seven pounds by a woman. He approached the woman’s husband holding a knife; a fight ensued in which the husband dropped five pounds. The defendant picked up the money and demanded the remaining two pounds. He was convicted of robbery contrary to Section 8(1) of the Theft Act 1968. The issue was whether robbery was an aggravated form of theft. The court held that the mens rea of the act was dishonesty and an intent to deprive the other person of the property. However, a defendant will not have appropriated property dishonestly if he genuinely believes he has the legal right to that property under Section 2(1)(a) of the same Act. A defendant who holds such a belief cannot be convicted of theft and, therefore, cannot be convicted of robbery — even if force was used — because theft is a requisite element of robbery. The court accordingly quashed the defendant’s conviction, as he genuinely believed he was legally entitled to the money. This illustrates how written law creates clear and predictable standards: even a person who uses force may escape a robbery conviction where the requisite mens rea is absent.6
Though it may sound counterintuitive, it is written law that requires the necessary mens rea of intentionally taking property with the sole intention of depriving another of it. The defendant, despite using excessive force, was not convicted of robbery owing to his genuine belief that he was owed the money. This demonstrates how laws are made simple and predictable by being committed to statutes.
Strengthens the Rule of Law
Legal positivism reinforces the idea that everyone is governed by the same law. This is demonstrated in the case of Arthur Wina v The Attorney General.7 The President of Zambia had issued a directive that certain government newspapers — including the Times of Zambia and the Zambia Daily Mail — were not to provide coverage to or accept advertisements from the Movement for Multi-Party Democracy (MMD). The petitioners applied for an order to quash and set aside the directive as a violation of their rights under Articles 22 and 25 of the Constitution of Zambia. The government-owned newspapers were United National Independence Party (UNIP) publications, and the MMD was an opposition party. In issuing the directive, the President had been speaking both as President of UNIP and as Head of the Republic.
Article 22 provides that a person may not be hindered in the enjoyment of freedom of expression — that is to say, the freedom to hold opinions without interference, to receive ideas and information without interference, and to communicate ideas and information without interference. Article 25 provides that no law shall contain any provision that is discriminatory in itself. The court held that the President was not permitted by law to make pronouncements that were contradictory to any provision of the Constitution of Zambia. As the court stated: “Unless the Constitution is amended, everybody from the President down to the commonest of the common man is obliged to follow to its letter what it says.” This case powerfully demonstrated the principle of the rule of law — that it is applicable to everyone in any affairs of state, from the highest office to the ordinary citizen.
Critics of Legal Positivism
Legal positivism also reveals the danger of blindly following recognised laws. The most notorious example of this was demonstrated during the Second World War, when the Nazis committed several war crimes under the justification of “following orders.” The objective of these laws and military commands was the systematic slaughter of Jews, Romani people, and other persecuted groups. Under a strict positivist framework, the Nazis could not have been charged with legal guilt because morality is not a necessary component of law as positivism defines it.8 It was precisely this dilemma that confronted the Nuremberg Tribunals, which ultimately rejected the positivist defence and invoked principles of natural law and humanity to hold perpetrators accountable — demonstrating that morality cannot be entirely excluded from the legal order.
This historical episode demonstrates how morality must be considered when making and carrying out laws, in order to prevent atrocities against society.
Way Forward
To prevent possible conflicts and atrocities, morality should be more fully considered in the law-making process where it is necessary, though it need not always govern every legislative decision. The challenge for modern legal systems is to harness the clarity and predictability of positivism while remaining alert to the moral limits that written law must not transgress. Law-making bodies and courts alike must develop the capacity to recognise when a positivist approach is sufficient and when natural law considerations demand a higher standard.
CONCLUSION
Legal positivism has proved that it is not merely a theory but is of great practical benefit when applied appropriately. Though its lacunae are few, they can be profoundly serious, as demonstrated by the earlier example of the Nazi regime. Courts must therefore know when to apply positivism and when to depart from it. In a similar way, law-making bodies should give careful consideration to morality when enacting laws, ensuring that the certainty and predictability that positivism offers is never allowed to become a cloak for injustice.
BIBLIOGRAPHY
PRIMARY SOURCES
Statutes
The Penal Code, Chapter 87
Cases
Arthur Wina v The Attorney General (1991) Z.R. 95 (H.C.)
R v Robinson [1977] Crim LR 173
SECONDARY SOURCES
Books
Joseph Chirwa, The Legal Process in Zambia
Articles
Daniel James, ‘Law and the Modern Mind, by Jerome Frank’ (1931) Vol. 6, Issue 5, Indiana Law Journal <https://www.repository.law.indiana.edu/ilj/vol6/iss5/10> accessed 6 March 2026
Judah Murray, ‘Natural Law and Legal Positivism in the Nuremberg Trials’ <https://digitalcommons.liberty.edu> accessed 9 March 2026
‘Kelsen’s Pure Theory of Law’ <https://scholarship.law.stjohns.edu/tcl> accessed 6 March 2026
