Natural Law & Positivism: Influence on Namibia's Legal System PDF

## Jurisprudence ### 1. Namibian Constitution & Human Rights * The Constitution upholds human dignity, equality and freedom - which are central to natural law ideals. * Art 6 protects the right to life and Art 8 underscores the importance of human dignity; they both reflect the influence of natu...

## Jurisprudence ### 1. Namibian Constitution & Human Rights * The Constitution upholds human dignity, equality and freedom - which are central to natural law ideals. * Art 6 protects the right to life and Art 8 underscores the importance of human dignity; they both reflect the influence of natural law, by making these rights absolute and above the discretion of the state. * These constitutional provisions imply that certain moral standards should guide legal interpretation and application, which ensures that laws align with justice and human welfare. ### 1. Has natural law & positivism influenced Namibia's legal system * Namibia, as a constitutional democracy, embodies elements of both natural law and positivism, they both impact how laws are interpreted and applied. * By examining the Constitution, relevant case law, we can see how these theories have been practically and theoretically significant in the development of Namibia's jurisprudence. ### The influence of Natural law on Namibia's Legal System * Natural law argues that law is connected to a universal moral order, suggesting that just laws are inherently tied to human ethics and reason. This view aligns with the belief that certain rights and principles are "natural" and unchanging, exceeding human-made laws. * In Namibia, this philosophical approach is reflected in foundational legal documents and judicial decisions where human rights, justice and moral standards are emphasized. * **Sv Acheson** - the court emphasized natural law principles by emphasizing fairness and justice as the foundations of the judicial system. In this case, Acheson was accused of political crimes - the court’s decision emphasized the need of a fair trial and just procedures. The court argued that justice should prevail even when it threatens state power, which is consistent with natural law principle that legislation should be moral and protect individual rights. ### Judges usually refer to justice as a higher standard. This is in-line with natural law’s foundation that real laws are just laws, and it emphasizes the Namibian judiciary’s duty in ensuring that the law maintains both the letter and spirit of justice. ### The influence of Legal Posivitism on Namibia's legal system * In contrast to natural law, legal positivism views law as a valid based on its enactment by a recognized authority, and not on its moral content. Under this law, law and morality are separate, and legal validity stems from adherence to legislative processes and the authority of the state. * Positivism is deeply embedded in Namibia's constitutional and statutory framework, where the Constitution serves as the ultimate source of legal authority. ### 1. The Constitutional framework & Kelsen's Grundnorm * Namibia's Constitution serves as the Grundnorm (basic norm) in Kelsen's positivist framework, which makes it the supreme law of the country and all other laws in the country get their authority from it. This is as per Article 1 of the Constitution, which asserts that the Constitution is the highest law in Namibia, binding on all organs of the state. This positivist influence implies that laws passed under constitutional authority are valid, regardless of their moral content, so long as they adhere to constitutional principles. * By adopting a structured hierarchy of laws, our legal system embodies the positivist view that law is a system of enforceable rules created by the state with the Constitution being the ultimate source of legal validity. ### 2. The Fishrot Scandal and Enforcement of Statutory Law * The Fishrot scandal involved allegations of corruption against high-ranking public officials, and it highlighted Namibia’s commitment to positivist principles - in regards to the enforcement of statutory law. * Despite moral objections and public outcry, the courts emphasized the importance of applying statutory anti-corruption laws strictly. This approach reflects the idea that laws must be enforced based on their statutory validity rather than subjective moral judgments. * This case underscores how Namibia’s legal system prioritizes adherence to legislative authority and procedure, affirming that laws are valid based on their source and not necessarily on their alignment with moral considerations. ### 3. The Role of Parliament & Sovereign Authority * The positivist perspective is evident in the role of the Parliament as the primary law-making body empowered by the Constitution. Parliament enacts statutes that are enforced by the judiciary without moral evaluation of each law’s content. This separation of powers allows the legal system to function independently of subjective moral views, as the judiciary’s role is primarily to apply the law as enacted, not to judge its ethical value. * Law derives its authority from its creation by a legitimate sovereign authority rather than from its inherent justice or moral correctness. ### 4. The principle of Justice in Namibia Jurisprudence * Namibia's courts often interpret laws to protect people’s freedoms and rights, which demonstrates our commitment to natural laws ideals of justice and equality. When assessing cases that violate traditional legal boundaries,