I think the observations made by several commentators concerning Zuma and the Constitutional Court’s finding are right. In particular Franny Rabkhin who in the Business Day suggests that whether Zuma is guilty of a breach of law is in some ways irrelevant, it is whether he is in breach of certain ethics that really matters. This was also suggested by the Chief Justice Mogoeng Mogoeng.
I think this, in some senses, speaks to Prof HLA Hart’s famous thesis on the separation of law and morality. In his seminal The Concept of Law Hart argued that law, although it can be motivated by morality, should not be treated as morality. Sometimes laws are constructed out of pure convenience or necessity or social order. For these reasons laws are not the same as morality. It seems, after all, reasonable to say that:
- Driving on the left-hand-side of the road is not moral
- I should not have to consult the laws of the land to find out that murder is wrong.
Most importantly Hart claimed that not only is there an analytic distinction between the law and morality but there is also a very strong normative reason for there to be this separation. That is to say that sometimes laws reflect an outdated morality (laws against certain sexual acts etc.) and need to be amended and sometimes they are pushed through by a corrupt legislature (Rex). Hart suggests that if one sees laws as moral then one simply can’t use morality to scrutinise them because I would be using the very same thing that I am trying to evaluate, to evaluate it.
Hart thus claimed that moral obligation and legal obligations are distinct. Sometimes laws, like apartheid laws, will try and coerce me into performing acts I find morally abhorrent. In which case I have a choice: obey the law or obey my morality. Looking at it this way Zuma had two choices: one to obey the law inscribed in the constitution (which he failed to do) and two to obey the morality which suggests that when one takes oaths of office one must adhere to them to the best of one’s ability (which he failed to do).