UNIVERSITY OF ZIMBABWE

FACULTY OF LAW
DEPARTMENT OF PUBLIC LAW
Course : History of Roman and Roman – Dutch Law LB104
Facilitator : M. Gwisai mgwisai@law.uz.ac.zw
Topic : Theories of State and Law, 1st Sem. 2018

THEORIES OF THE STATE

MATERIALIST THEORIES: THE MARXIST / HISTORICAL MATERIALIST THEORY

OF THE STATE

The State and Law, like religion, culture and so forth, are elements of the superstructure. They
have not always been there but only arose in the Slavery Social Formation, when productive
forces had advanced to the level where human beings were able to produce a surplus value
over and above their subsistent needs.

Primitive Communism – No State, Law or Organised Religion

Primitive communism was the first and longest historical mode. It was characterised by low
levels of development of productive forces made up of rudimentary stone, stick and other
natural tools. In such circumstances human labour was barely able to provide the essentials of
life and no surplus value to the subsistence needs of humans, could be produced.
The above state of productive forces led to a certain type of relations of production.
People were forced people to live in blood-related groups, clans and group families, and to
organise work jointly and co-operatively. For instance see various Bantu idioms – “ukusebenza
ndawonye” or “mushandira pamwe;”1 “ilima” or “nhimbe,” 2 and “kutsva kwe ndebvu varume
vanodzimurana” or “rume rimwe harikombi churu” or “izandla siya gezana,” or “chiripo chiripo
ndarira imwe hairiri mugumbo” or “huni imwe haikodzi sadza;” or “ida wekwako semadiro
aunozviita iwe; 3 Group identity, such as a clan name or totem were the primary forms of
identification and not individual surnames. Thus – “umuntu ngumuntu ngabantu.”4
The means of production were largely communally owned and controlled. There was
very limited private personal property, usually certain tools against predators. There was also a
natural division of labour based on gender and age. Men focussed on hunting, women in
gathering fruits and the raising and teaching of children with the assistance of the old.
The food and other products of labour were distributed communally and in an egalitarian
manner. See Bantu proverbs like, in Ndebele, ‘Isisu somhambi asinganani singano phonjwana
lembuzi,”5 or in Zezuru,”muenzi haapedzi dura,” or “chawawana idya nehama mutorwa ane
hanganwa.” Thus there was no exploitation of human being by human being.
1
Collective labour or working together.
2
Neighbors or a community coming together to till fields of one of theirs who later provides traditional beer for all
to share..
3
Men help each other douse a colleague’s burning beard; or one man cannot encircle an ant-hill; or hands wash one
another; or one leg rattle cannot make music; or you cannot prepare a full meal of sadza using one stick; love your
village or others as you love yourself..
4
A person is person because of other persons. See the Tonga children and the European anthropologist sweets race.
5
A passer by is just around for a while, so one won’t lose much by giving him something to eat.

M Gwisai, HRRDL Theories of State 2018 Page 1

Neither was there the oppression of women by men as there was gender equality, with in fact
the role of women more important as this is how the clan line was established, hence many of
these societies were matrilineal.6 See Bantu idioms and proverbs like: “Umuzi u mama” or
“musha ndimai;”or “kusina mai hakuendwi”; or “nhamo i nhamo mai havaroodzwi;” or “chembere
mukadzi hazvienzani nekurara mugota.” 7 A child who assaulted his mother committed an
abomination – “kutanda botso.”
Although conflicts existed in such society, including in the process of work, and between
men and women, the conflict or contradictions were not antagonistic. Social order and cohesion
was kept through customs and religious conventions developed over time. These were the main
features of the superstructure and hence there was no law or state.

Southern Africa Case Study

- Late Stone Age people in Southern Africa – AD800 – 1100AD
- See, P Garlake and A Proctor, People Making History Bk 1 (Mambo Press) pgs 41-
52.
- See also C Harman, “Chronology”, A Peoples History of the World, Bookmarks.

Emergence of State, Law and Patriarchy in the slave-owning mode of

production
The state and law or women’s domination by men were not always there – they were absent
under Primitive Communism. They emerged at a much later stage in human history, about 7
000 years ago, as a result of changes in the economic base of society, in particular following
qualitative advances in productive forces that occurred at the end of Primitive Communism
starting about 10 000 years ago. Engels refers this later period of Primitive Communis, as
Barbarism, as opposed to the earlier one that he called Savagery.8 These advances in turn led
to revolutionary changes in the relations of production, followed by the overhaul of the
superstructure of the earlier Primitive Communist society.
About 10 000 years ago with the development of metals like copper, bronze and
eventually iron there was the emergence of farming. There was also the domestication of
certain animals like dogs, goats, sheep, camels, donkeys and cattle. For the first time in human
history it became possible to produce a surplus value over and above subsistence needs. This
allowed for division of labour based on specialisation of labour and not just the Natural Division
of Labour under early Primitive Communism. This is called social division of labour. The First
Social Division of Labour was that involving the separation of farming and pastoralism. Further
advancement saw the separation of craftsmanship including of metals, pottery and basket
making – which is called the Second Social Division of Labour. The third and final social division
of labour was the emergence of groups and persons who focussed on trade and exchange -
traders and money lenders who facilitated the traders and craftsmen. Concentration of
production, trade and exchange led to increasingly bigger settlements initially villages but later
leading to the formation of towns, the largest of which became city states.
The development of productive forces, the further social division of labour and exchange
increased considerably the productivity of human labour, leading to the creation of surplus
value. But these new productive forces could no longer fit into the framework of the old primitive
communist relations of production.

6
See H Devlin, “Early men and women were equal,” op cite.
7
A home is the mother; or where mother is not there, one does not go; or no matter how desperately poor one is, one
can never marry off your mother; marrying an old woman is better than remaining a never-married bachelor who
sleeps with the boys.
8
F Engels, The Origin of the Family, Private Property and the State,
https.//www.marxists.org/archive/marx/works/1884.

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 Under the new stage of productive forces, the need for joint labour at the level of the
clan disappeared, whereas the possibility of carrying out work at a smaller scale, the individual
pairing and patriarchal family arose. Joint labour had required collective ownership of the means
of production at the clan level, equal relationships between men and women and egalitarian
consumption of the product of collective labour. Now individual labour at the individual family
level required private ownership, control and operation of the some of the means of production
like land, cattle, camels, donkeys and so forth and individual consumption of the product of
labour. This is reflected in the Karanga proverbs – “mbeva zhinji hadzina mashe;” or “chako
ndechako kuseva unosiya muto;”9
And crucially the basic economic unit of production became the patriarchal monogamous
family rather than the previous clan which was based on relative equal relationships of women
and men. The protection of that unit resulted in changes to the superstructure and social
consciousness based on the oppression and marginalisation of women. Karl Marx puts it aptly:
“We argue that while women are oppressed today and have been in the past
they have not always been so. Their oppression arose at a particular stage of
social development and was institutionalised through the particular form of the
patriarchal family characteristic of that stage of social development.”

Or F Engels:
“Subordination of women took place relatively recently, beginning in the epoch of
barbarism and becoming fully developed by the onset of the epoch of
civilisation... The overthrow of mother right was the historic defeat of the female
sex... as women became degraded and vulgarised as slaves to men’s lust and
used as an instrument for reproducing more women and men.”

Thus there emerged beliefs of women being inferior to men and justifications for their reduced
role in production and society, restricting their role to that of procreation and in domestic
household work and beginning to see women as objects in production. The above was
accompanied with the sexual oppression of women in which women were denied the equal
sexual liberties they had enjoyed with men in Primitive Communism. Men’s domination arose
because most of the advances in productive forces occurred in the areas dominated by men,
like hunting, mining, crafts and trade. The creation of surplus value required that this eventually
be succeeded by the man’s children , which could only be assured if there were monogamous
sexual relationships rather than the group sexual relationships of the clan era. A need therefore
emerged for men to control and restrict women’s sexuality and whilst the need for more labour
encouraged maximum procreation. This could be achieved though large families and polygamus
marriages.
Thus the old relations of production centred around the clan and group family, had
become a break on the further development of productive forces by the end of primitive
communism, a period sometimes called Barbarism.
There was therefore now an antagonistic contradiction between the new stage of
development of the productive forces and the old relations of production. This contradiction was
resolved through the overthrow of the old relations of production and their substitution by new
ones that matched the new advanced stage of the productive forces. These included the
emergence of private property in the means of production, especially cattle, camels, land, tools
etc; the emergence of the male-dominated or patriarchal monogamous family as the new basic
unit of production of society replacing the matrinial clan. Social inequalities then emerged
between and within clans, some being richer and other being poorer.

9
Too many mice do not produce productive work; and you do what you want with your own property.

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 Also under the new conditions of increased productivity and production of surplus value,
there grew a much higher need for human labour than before. This demand was met firstly by
more children born in the individual family and more broadly by raiding neighbouring tribes, with
prisoners of war now turned into slaves or the property of their captors. Slave labour led to
acceleration of social inequalities. On the one hand families using slaves quickly grew rich,
concentrating the cattle, land, money etc into their own hands; on the other poor people became
poorer and increasingly reliant on the richer ones to whom they were compelled to turn to for
loans, or land or work.
The broad groups of persons who thus arose from the process of production, depending
on their relationship to the means of production, whether they owned and controlled these or
only had a little and compelled to rely on those who controlled them, were called Classes.
These emerge at the same time with the emergence of private property at the end of the
primitive communist period.
In such society conflict and contradictions reached a new hirtherto unprecedented scale.
Internally there was huge potential conflict between the classes, clans and between fathers and
their wives and children. Externally growing conflicts between neighbouring clans and tribes
raiding each other for young men, women and surplus value.
To contain and deal these new antagonistic contradictions in the relations of production
and society at large and stop society from disintegrating, major qualitative changes occurred in
the Superstructure of society, namely the emergence of the State and Law as the chief
institutions of maintaining order and peace but in a manner that protected and advanced the
new elite groups that dominated society economically. Organised religion emerged as a
supporting structure to the State and Law.
Similarly were profound changes in Social Consciousness. There was the emergence of
organised religion and beliefs and customs that celebrated and justified individualism, private
property, the class rule of the dominant economic and political elites and the domination of
women by men including denial of sexual liberties to women.
As for individualism and private property see various Bantu proverbs and idioms like,
“Indoda iyazibonela”;10 “Hakuna inofurira irere” or “indoda idla izithukuthuku zayo” or
“chawawana batisisa midzimu haipi kaviri;” or “vanavehuku vanodya ndovaripo;” “nhamo
yeumwe hairambirwi sadza”; 11 “inja iyawemuka umgodoyi ithambo layo” or “kudya zve vapfupi
nekureba” or “vakangwara havana nhamo”; “kakara kununa kudya kamwe”; or “chako
ndechawadya chigere mudura mutoro wamambo;12 “murombo haarovi chinenguo” or “wenhamo
ndewe nhamo kufuga gudza rinotsva;” “ane chake ndimambo”.13

In the Christian Bible there are many verses that justify the existence of poverty as eternal in
human society and for the exploited to obey their exploiters. See:
 Genesis 3 vs 17 – 19: (17) “To Adam he said, ‘Because you listened to your wife
and ate from the tree about which l commanded you, ‘You must not eat of it,’
“Cursed is the ground because of you; through painful toil you will eat of it all the
10
A man looks out for himself alone.
11
The lazy ones shall not eat’ or a man feasts on what he toils for; or don’t be over generous with your property, the
ancestors usually bless only once; or the chicks who eat are those present;. or you do not stop eating your sadza
because others are hungry. A variant being “hope hadzina ndima.” If you are lazy and give premium to sleep no one
will till your fields.; or you do not stop eating your sadza because others are hungry;
12
A stronger dog can snatch a bone from a weaker one; or the tall taking advantage of their height to steal from the
short ones or the clever ones will never be poor; the animal that prospers by eating other animals; or that which you
can confidently assert to be yours is that which you have eaten, not that which is in the granary, for it could be
expropriated by the king.
13
The poor shall always remain poor; the poor will remain poor forever, if they get a blanket it burns; or the owner
is lord of his property with full and complete dominium over it.

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 days of your life. (18) it will produce thorns and thistles for you ... (19) By the sweat
of your brow you will eat your food until you return to the ground, since from it you
were taken; for dust you are and to dust you will return.”
 Mark 14:7 - “You will always have the poor among you, and you can help them
whenever you want. But you will not always have me.” Also, Mathew 26:11
 Deuteronomy 15:11 – “For there will never be a time when there are no poor in the
land; and so l give orders to you, Let your hand be open to your countrymen, to
those who are poor and in need in your land.”
 Ephesians 6:5 – “Slaves obey your earthly masters with respect and fear, and with
sincerity of heart, just as you obey Christ.” Also, Peter 2:18 – 20.
 Colossians 3:22 – “Slaves, obey your earthly masters in everything, and do it, not
only when their eye is on you and to curry their favour, but with sincerity of heart and
reverence of the Lord.”

As for patriarchal and sexist forms of social consciousness that upheld the superiority of men
over women, the sacrosanctity of the monogamous male-dominated family as the basic,
fundamental and natural unit of society and sexual suppression of women. For instance Bantu
idioms and proverbs like: “baba ndivo mukuru we musha” or “ indoda yinhhloko yomuzi”; or
“hakuna zumbu rinokukurudza machongwe maviri.”14
The same was reflected amongst Jewish people in the Christian Bible, which contains
many verses justifying male domination of women and maximising procreation. See:
 Genesis 2 vs 18 - 24: “The LORD God said, ‘It is not good for the man to be alone. I
will make a helper suitable for him.. (21) So the LORD God caused the man to fall
into a deep sleep; and while he was sleeping, he took one of the man’s ribs and
closed up the place with flesh. (22) Then the LORD God made a woman from the rib
he had taken out of man and he brought her to man. (23) The man said, ‘This isnow
my bone of my bones and flesh of my flesh; she shall be called “woman”, for she was
taken out of man”.(24) For this reason a man will leave his father and mother and be
united to his wife, and they will become one flesh.”
 Genesis 3 vs 16 – 18; (16) To the woman he said, “I will greatly increase your pains
in childbearing; with pain you will give birth to children. Your desire will be for your
husband, and he will rule over you.”
 Colossians 3:18 – “I do not permit a woman to teach or to exercise authority over a
man, rather she is to remain quiet.”
 1 Corinthians 11:12 – “Wives, submit to your husbands, a sis befitting the Lord.”
 2 Kings 22:14 –“The women should keep silent in the churches. For they are not
permitted to speak, but should be in submission, as the Lord also says. If there is
anything they desire to learn, let them ask their husbands at home. For it is shameful
for a woman to speak in church.”
 1 Peter3:7 – “Wives, submit to your own husbands, as to the Lord. For the husband
is the head of the wife even as Christ is the head of the church, his body, and is
himself its Saviour. Now as the Church submits to Christ, so also wives should
submit in everything to their husbands. Husbands, love your wives, as Christ loved
the Church and gave himself up for her, that he might sanctify her, having cleansed
her by the washing of water with the word...”
 Genesis 9:7 – “As for you, be fruitful and multiply, and increase abundantly on the
earth, and subdue it.”
 1 Timothy 2: 12-13 – “Women should not teach or have authority over men.”

14
The man is the head of the family; or there cannot be two cocks in one chicken run.

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  1 Corinthians 11:7 – “A man should not cover his head since he is the image and
glory of God, but the woman is the glory of man.”

The Islamic Koran, which was inspired by Christianity asserts similar views. See for instance:
 Chapter 4:34 – “Men are in charge of women, because Allah hath made the one of
them to excel the other, and because they spend of their property (for the support of
women). So good women are the obedient, guarding in secret that which Allah hath
guarded. As for those from whom you fear rebellion, admonish them and banish
them to beds apart, and scourge them. Then if they obey you, seek not a way
against them. Lo! Allah is ever High, Exalted, Great.”
 Chapter 24:31-32 – “And say to the believing women that they should lower their
gaze and guard their modesty; that they should not display their zeenah (charms, or
beauty and ornaments) except what (must ordinarily) appear thereof; that they
should draw their khimar (veils) over their bosoms and not display their zeenah
except tot heir husbands, their fathers, their father-in-law, their brother, their son..
and that they should not strike their feet so as to draw attention tot heir hidden
zeenah (ornaments).”

Similar views were expressed by Greek idealist philosophers like Plato and Aristotle:
 Plato (427 – 442 BC). “Women came about through the physical degeneration of the
human being. Its only males who are created directly by the gods and are given a
soul. Those who live rightly return to the stars but those who are cowards (or lead
unrighteous lives) may with reason be supposed to have changed into the nature of
women in the second generation.”15
 Aristotle (384BC – 322BC): “Women and men are by no means born equal naturally,
but that some are born for slavery and others for domination.”

The state emerged as a special body of armed persons with substantial social monopoly over
the use of violence, and responsible for the enforcement of a special body of rules that applied
to all persons in a given territory, called law. Thus the State and Law emerged and evolved from
the womb of primitive communism only about 7000 years ago in order to minimize class and
social conflicts and prevent them from potentially engulfing the entire society in a perpetual civil
war that would destroy production and threaten the very foundation of society itself. The state
and law did not emerge under a voluntary social contract for the equal benefit of all but instead
was designed to protect the interests of the dominant economic class. In other words they
emerged to maintain social order and ensure the continuation of the process of work, but doing
so in a manner that favoured the economically dominant classes and groups in society.

“Rather it (the State) is a product of society at a certain stage of development.... it is the

admission that this society has become entangled on an insoluble contradiction with
itself, that it has split into irreconcilable antagonism which it is powerless to dispel. But in
order that these antagonisms, these classes with conflicting economic interest might not
consume themselves and society in fruitless struggle it has becomes necessary to have
a power ... this power arisen out of society but above it ... is the state.” F. Engels.

Features and Functions of the State

15
Plato and Aristotle, “Women are inferior by Nature” http://www.womenpriests.org

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 1. Over time the State has changed and evolved from lower, simple to higher and complex
forms as private property modes of production have changed and succeeded one
another. From Slavery to Feudalism and today under Capitalism. The state has also
taken various forms within the same mode of production such as Monarchy, Republic,
Democracy, Autocracy or Dictatorship.
2. However, through out this history and its different forms, the essence, features and
functions of the State (and Law) has remained the same, summarised by V.I. Lenin as
being “a machine for maintaining the rule of one class over another.”
3. The first primary feature of the state is its class character. The class which dominates in
the economy, i.e. which owns and controls the main means of production “acquires in
the state a powerful instrument for the subjection of the oppressed and exploited. The
state has a clearly defined class character.” 16
4. The first main feature of the state is its being a public authority, which has substantial
monopoly over the use of violence in society using special bodies of armed men and
women - armed forces, like the army, police, prisons, intelligence. This public force is
controlled and accountable to the class which dominates and controls the economy. This
is unlike under primitive communism were all the people, especially men were armed
and had the duty of defence of society.
5. Besides the armed force, the state as a public authority has various other supporting
bodies and apparatus, including the bureaucratic administrative structures, the judicial
bodies, social and economic structures. All these bodies combined with the armed
forces make up the public authority of the state.
6. Historically the State has exhibited two main functions: the internal and external
functions, with the former the main function. The internal function is the suppressive
function – the peace, law and order function but one biased in favour of the dominant
economic and political elites of that society. The State is first and foremost a suppressive
and oppressive instrument or machine in the hands of small elite group of the
exploiter/oppressor classes to suppress and dominate working people, who are the
majority in any class society. The State is there to ensure, protect and guarantee a mode
of production based on private property in the means of production and the extraction of
surplus value from the working people by the elite layers who own and control the
means of production. In other words to maintains social order and harmony and ensure
work continues in society but doing so in a class partisan manner that chiefly and mainly
benefits the economically dominant groups in society at the expense of those who do the
actual work. Lenin puts it aptly:

“Every State is an instrument of the rule of one class, a ‘machine’ for

suppression used against the other class. It serves to conserve, fortify and
evolve that economic and social order which best corresponds tot he interests of
the ruling class, as determined by the mode of production.” V.I. Lenin.

7. Note must be taken that in its internal function the State does not exclusively use and
rely on force and suppression. A secondary and subordinate character of any state is its
universalist, reformist – ideological character. That is the State and Law represent the
average interests of the ruling classes with the fundamental objective of pre-emptying
social conflicts from escalating into social revolution against the entire mode of
production based on private property. The State and Law provide reforms that limit
excessive and arbitrary oppression and exploitation of the working classes by sections of

16
VG Afanasyev, Marxist Philosophy, op cite pg 282.

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 the ruling classes. This is done to pre-empt growing revolts from below that may
threaten social revolution against the entire system.
Such reforms have usually been grabbed where there has been immense class struggle
by the poor or those who are exploited and oppressed, hence the term by Marx that
“Class struggles are the engines of history.”
8. Every State and Law contains the above two features, but as to the degree, this will be
determined by the balance of inter-class struggle between the main classes of that
society, reflecting the gains, victories, and defeats of the working classes. On the other
hand they also partially reflect the results of intra-ruling class struggles in particular their
response to the tensions between the productive forces and the relations of production
reflected in the inter-class struggles. Sections of the ruling classes not fundamentally
threatened by the changes in the productive forces will be prepared to grant more
reforms than those who stand to lose the most. In this way the ideas and belies and
strategies of the ruling classes reflect and can influence the economic base.
9. The second function of the State is the external function. This too is multi-dimensional. It
involves the defence of a given society from attacks by other states. Or it is to be used
as an economic and political instrument to attack other states and seize wealth,
resources and territories, which will be predominantly for the interest of the domestic
ruling elites. Or the state is an instrument of conducting foreign affairs and exchanges
with other states. The external function is shaped and determined by domestic and
internal function of the state, i.e. the interests of the dominant domestic ruling elites.
10. Historically the emergence of the State and Law was an essential and progressive step
for humanity because it enabled the advancement of productive forces and relations of
production to eventually reach the unprecedented levels of scientific development
reached under capitalism, whereby for the first time in human history, it is possible to
house, clothe, educate and provide health care, to every single person on the planet,
even if at a basic level.

Emergence of the State in Zimbabwe and Southern Africa

1. The emergence of the State in Zimbabwe and Southern Africa follows a similar but
modified history from the classical formulation described above.
2. The history of the state in Southern Africa runs for almost a millennia. The first states
emerged at the end of late Primitive Communism or Late Iron Age from about 800AD,
with the development of what Prew et al have described as the lineage and tributary
mode of production from amongst the Bantu people.17
3. In this period, just as in the classical case cited above, the emergence of classes and
surplus value because of qualitative advances in productive forces, led to the formation
of states and laws. But unlike in the classical case, where a ruling class emerged
centred on slave labour and exploitation, in Southern Africa, the ruling class emerged
through exploitation of lineage, women and tributary labour and centred around control
of land, cattle, gold and ivory trade.
4. The first major state in Southern Africa was the Kingdom of Mapungubwe (AD1075 –
1220) which emerged at the confluence of the Shashe and Limpopo Rivers at the border
of present day South Africa and Zimbabwe. At its peak it had 5000 people. This was
succeeded by the Kingdom of Zimbabwe (AD1270 – 1550) whose capital, Great
Zimbabwe with 18 000 inhabitants, represented the peak of state formation in Southern
Africa. Garlake and Proctor argue that for a period of 200 years “Great Zimbabwe was
17
M Prew et al, People Making History Bk 3, op cite, pg. 5.

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 probably the largest city anywhere in Arica outside Egypt. It was the capital of a well-
organised, wealthy, powerful and long-lived state.” 18
5. The Kingdom of Zimbabwe was succeeded by three major states from amongst the
Shona in the period 16th to 19th centuries. These were the Mutapa state, the Torwa state
and the Changamire state or Rozvi Empire (AD1684 – 1834). The Rozvi Empire was
succeeded by the Ndebele state from the mid-19th century as the most powerful state in
present – day Zimbabwe, and second only to Zulu Kingdom in Southern Africa.
6. The basis of emergence of the state in Southern Africa were the advances in productive
forces from those of the Early Iron Age to those of the Late Iron Age, after 800AD and
consequent revolutionary changes to the relations of production and superstructure of
the earlier period of the Early Iron Age. The advances in productive forces included
agriculture, pastoralism, craftsmanship and trade. Changes in agriculture involved
farming of sorghums, millets and cow peas. Whereas there had been domestication of
sheep and goats in the Early Iron Age, after 800AD there was large scale breeding of
cattle. In crafts there was pottery, copper and iron craftsmanship in the Early Iron Age.
After 800AD advances in iron – craft resulted in the production of heavy iron tools and
weapons including iron axes, spears, hammers, knives and iron hoes. There was also
mining of copper and gold to produce needles and wires for trade. Rough cloth was
produced from wild cotton. Trade also became important, especially ivory and gold in
exchange with glass beads, glassware, pottery and refined cloth with traders in East
Africa from China and Persia.
7. Garlake and Proctor show how the advances in productive forces after 800AD led to the
creation of new wealth or surplus value and how this in turn led to revolutionary change
in the relations of production, relationships between men and women and the
superstructure. Surplus value allowed specialisation of labour, social stratification,
emergence of classes, the polygamous patriarchal family and the start of domination of
women by men in the relations of production and society at large. Changes in the
superstructure saw the emergence of states, laws and organised religion. Specialisation
occurred leading to some people becoming miners, hunters, blacksmiths, farmers,
pastoralists, potters and basket makers, domestic workers, traders. Some of this surplus
increasingly was appropriated by an emerging elite in the clans and lineages, who were
given part of the produce as a tribute. This elite included clan heads, lineage heads,
spirit mediums, royal advisors, military commanders, chiefs and later kings. The basic
unit of production was no longer the whole clan but the homestead consisting of a man,
his wives and children. A group of homesteads that traced their origin to a common
male ancestor comprised a lineage. They shared the same vadzimu, (ancestral spirits),
mutupo - totem and could not marry within the same lineage. Lineages formed clans
headed by a clan head, with a village comprising several clans. Some lineages and
clans became richer than others and increasingly had control of access to the good
farmland, mining areas and trade routes. In the clan, land belonged to the whole
community, whilst cattle belonged to the whole lineage but were controlled by the elderly
men. The village headman was usually from these richer clans and lineages. Villages
grouped to form districts, and the grouped to form provinces.
8. After 1000AD groups of provinces grouped up to form a new and higher formation, the
state, which was led by a ruler or king. The first most powerful of which was the
Kingdom of Mapungubwe. A number of the richer and powerful lineages believed they
had a shared ancestor who founded the state - mhondoro. The ruler’s lineage was
considered superior to all other lineages in the state, and the one closest to the founding
ancestor and to the High God, called Mwari in the Rozvi Empire. A ruling class emerged

18
P Garlake and A Proctor, People Making History, Bk 1(Mambo Press.) 82.

M Gwisai, HRRDL Theories of State 2018 Page 9

 around the ruler or king which controlled access and ownership to most of the means of
production in particular land, cattle, trade items in particular ivory and gold and marriage.
For instance ivory hunters had to hand over to the ruler, one tusk per elephant. Land and
cattle were leased to peasants at unfair terms by the elites – kuronzera – or ukusisa,
thereby providing them cheap labour. Hence the Shona idioms, “mombe yekuronzera
kama waka ringa nzira,” 19 or “chisi chako masimba mashoma.”20 This is shown in the
Shona proverb “chako ndechawadya, chigere mudura mutoro wamambo.” Indeed
the Rozvi Empire king or Mambo, the Changamire was all powerful, being the “highest
political, religious, military, economic, judicial and social authority as well as the main
distributor of land...He was helped by an advisory council of state officials appointed by
him who consisted of his most senior wives, the crown prince, the tumbare (regent),
religious leaders, military commanders and vassal chiefs.”
9. The creation of surplus value, also led to major changes int he relationship of men and
women. Most of the surplus occurred in areas of work controlled by men, involving hard
manual labour. Women’s work became focussed in the family, child rearing, domestic
work and cultivating. Whereas men focussed on wealth creation as herders, miners,
black smiths and traders. Women increasingly became seen as objects in the production
process and equated with wealth in the marriage process as reflected in the emergence
of the institution of the bride price – lobola or roora. This was paid for in cattle, iron
goods and other luxury goods like beads. Rich people could have more wives, polygamy
thereby increasing their source of labour and potential wealth as well as social status.
Marriages also represented alliances with other lineages and families building greater
societal bond and unity at the expense of women. Women did not belong to the lineage
of their husbands but retained that of their own fathers. The children and the surplus
they produced belonged t the husband’s lineage. The reduced role of women in society
was shown in beliefs, ideas and customs that marginalised women. For instance
amongst the Shona – baba ndivo mukuru we musha;21 sa musha;22 “mukadzi haapi
murume haapi murume gupuro” or “vakadzi vauyi vanoenda;”23 mukadzi kwaye pfunda
mvura pagakava;24 chakapfukidza dzimba matenga25 and kutyora muzira.26 And amongst
the Ndebele - : “indoda yinhhloko yomuzi;”27 “indoda libhetshu lamuzi;” 28.
“abesintwana;”29 and “zala abantu ziye abantwini;”30
10. From this certain senior lineage groups, chiefs and elders drawn from the earlier Iron
Age era, emerged which basing their strength initially on their cattle herds, succeeded
to dominate enough of the gold trade to found a state structure.31 These groups
increased their wealth through tributes levied on the ordinary people, and on the gold
trade. At Great Zimbabwe a ruling class emerged of about 300 families in a society over
of 25 000. The ruling class lived in houses with very thick clay walls and surrounded
19
You must quickly the leased cow, lest the owner might just be by the road coming to repossess same.
20
The leasee does not have full control over the leased property as regards the owner.
21
The man is the head of the family.
22
Head of the home.
23
A woman does not have the right to divorce her husband, only the husband can; or women are aliens in the family,
who do not belong to the family lineage and can be removed any time.
24
A good wife remains silent when there is a dispute with the husband, as if she has water in the mouth.
25
All marriages have secrets, especially the bad, - but these are concealed to the world by the roofs.
26
Women kow towing when approaching their husbands or elderly men. Sometimes women move ont heir knees
when giving water or food to the chief or king.
27
Man is head of the household.
28
Man is the protective or superior clothing of thehomestead.
29
Those who remain forever children or minors.
30
Women leave their own own families for their husband’s family.
31
DN Beach, The Shona and Zimbabwe 900-1850: An Outline of Shona History (Mambo Press) pgs 37-38

M Gwisai, HRRDL Theories of State 2018 Page 10

 walls of stone – which represented the symbol of the ruling class. The rulers ate beef
and drank a lot of beer, whilst the ordinary people had wild animals, goats and sheep.
The ruling classes wore gold and copper bangles and wore heavy, decorated cloth from
aboroad including China, Syria and Persia. They did very little work and spent much time
drinking traditional beer. They controlled the labour of society through labour tributes as
well as contol of the institution of roor creating greater unity and bonda. Spirit mediums
were also part of the ruling class.32

Historical Types and forms of the State

The State emerged at the end of Primitive Communism, in its classical form associated with the
emergence of Slavery. Thereafter the State has under gone various changes in forms
consistent with changing modes of production, although its key essence and functions have not
changed.
The major types of the State have included the slave-owning state; the feudal state, the
capitalist state and the socialist state. In each type of state there has been different forms of
government, that is the specific organisation of rule or power. Historical examples have
included: a monarch – which is rule by one person; an empire – rule by an emperor; a republic –
which is rule by an elected body; aristocracy – rule by a relatively small minority and democracy
– which is the rule based on elected bodies elected by the majority.

1. The Slave-owning state

This is the first form of the State and represented primarily the interests of the slave-
holding classes against the working people, primarily slaves. The key driving force
behind the character of the State in this period was the class struggle between slave-
owners and the Slave state against slaves. Diverse forms of the State existed in the
slave-owning state, including the monarch, republic and empire. In Southern Africa, the
state emerged mainly as lineage and tributary mode of production state.

2. The State under Feudalism

This was the State that emerged in the feudal mode of production that succeed classical
slavery in places like western Europe. In other societies as in Southern Africa, societies
did not undergo the classical slavery mode of production but advanced to forms of early
feudalism from late primitive communism. The feudal state primarily represented the
class interests of the feudal ruling class including kings, chiefs and feudal lords who
controlled/owned the land and other means of production and trade, against working
people, chiefly peasants, serfs and craftsmen/artisans.
The principal class conflict that shaped the State and Law in this period was the
class struggle between the feudal elites and the peasants / serfs. The most widespread
form of government under feudalism was the monarchy.

3. The State under Capitalism

This emerged in western Europe from the late 17th century AD as the capitalist mode of
production succeeded the feudal mode of production. It spread globally from the late 19th
century AD and by the end of the 20th century had become dominant across the entire
world. The capitalist state primarily represents the interests of the capitalist class, the
bourgeoisie, who own and control capital and major means of production and make
32
See generally, Garlake and Proctor, pgs 81- 87.

M Gwisai, HRRDL Theories of State 2018 Page 11

 profit and surplus by exploiting working people, mainly workers or the proletariat, who do
not own any means of production and are forced to work for the capitalists, for wages in
order to survive. In less developed capitalist countries in the Global South, the peasants
still form a declining but still significant or majority portion of working people, who are
also exploited by the capitalist system. The capitalist state is the dominant form fo the
State across the world.
The principal class conflict that shapes the State and Law under capitalism is the
class struggle between the bourgeoisie or capitalists with workers or the proletariat.
Diverse forms of government exist under capitalism but the most widespread is the
democratic republic, although dictatorships and monarchs also exist. The Lenin quote
below well captures the truth of the democratic republic under capitalism.

The emerging Socialist State

This is the State identified with the socialist mode of production, which is emerging in the
womb of late and decaying capitalism. The socialist mode of production is charecterised
by public and socialised means of production under the democratic control of workers,
peasants and other working people. The bourgeoisie is expropriated of the means of
production and forced out of political control of the state. The socialist state, called the
dictatorship of the proletariat, is the first form of state to represent the majority of people
in society, workers, the peasants and other types of working people. The first socialist
state was the Paris Commune of 1873, but one which was confined to the capital city of
France. It last for less than six months. The first socialist state across a country was in
Russia following the October 1917 Russian Revolution. This lasted until 1928 when it
was overthrown by the Stalinist counter-revolution.
The socialist state exists as a democratic republic and represents the most
democratic form of the state in human history.

Communism and the withering away of the State and Law

1. According to the Marxist theory, the State and Law do not remain in perpetuity. The two
emerged simultaneously with the emergence of private property and classes in the
relations of production at the end of Primitive Communism and start of the slave mode of
production, and cannot exist where such relations of production cease to exist.
2. In the late advanced stages of capitalism, called monopoly capitalism, productive forces
reach such a high level of development, including being globalisation and concentration
of production in a few global centres, that the further development of the productive
forces can no longer continue within the confines of the nation state and private property
relation of production. An antagonistic contradiction occurs between the advanced and
globalised productive forces and the relations of production based on private property
and the nation-state.
3. This antagonistic contradiction can only be resolved by the overthrow of the capitalist
nation state and capitalist private relations fo production by globalised relations of
production based on socialised or communal property under the control of working
people. Initially this occurs with the emergence of the socialist mode of production and
the socialist state.
4. The further development of the socialist mode of production sees the gradual and
eventual withering away of all forms of private property and classes in the relations of
production. With this the political and legal superstructure is also forced to change.
Without classes, without private property, the need for the State and Law as well as
organised religion disappears as they will be no antagonistic classes that need to be

M Gwisai, HRRDL Theories of State 2018 Page 12

 reconciled and balanced in order to avoid perpetual social war and conflict. This is the
stage of Communism, at which point the State and Law will “wither away.” They will be
replaced by new forms of social and political organisation based on communal and
egalitarian relations of production that characterised Primitive Communism, but with the
difference that the poverty and material deficiencies that characterised the former will be
replaced by the plenty and abundance of communism – finally fulfilling the idealised
dreams of earlier societies – heaven on earth.

Lenin summarises beautifully the Marxist theory:33

“...but even people who are simply under the sway of the prejudice of bourgeois
liberty, have taken up arms against Bolshevism all over the world because when
the Soviet Republic was founded it rejected these bourgeois lies and openly
declared: you say your state is free, whereas in reality, a slong as there is private
property, your state, even if it is a democratic republic, is nothing but an a
machine used by the capitalists to suppress the workers, and the freer the state,
the more clearly is this expressed. Examples of this are Switzerland in Europe
and the United States in America... Nowhere does capital rule so cynically and
ruthlessly, and nowhere is it so clearly apparent, as in these countries, although
they are democratic republics, no matter how prettily they are painted ad
notwithstanding all the talk about labour democracy and the equality of all
citizens... The fact is that in Switzerland and the United States capital
dominates... and nowhere does the influence of capital in parliament manifest
itself as powerfully as in these countries. The power of capital is everything, the
stock exchange is everything, while parliament and elections are marionettes,
puppets....” Whatever guise a republic may assume, however democratic it may
be, if it is a bourgeois republic, if it retains private ownership of th eland and
factories, and if private capital keeps the whole of society in wage-slavery... then
this state is a machine for the suppression of some people by others... And we
shall place this machine in the hands of the class that is to overthrow the power
fo capital. We shall reject all the old prejudices about the state meaning universal
equality – for that is a fraud: as long as there is exploitation there cannot be
equality. The landowner cannot be the equal of the worker, or the hungry man
the equal of the full man. This machine called the state, before which people
bowed in superstitious awe, ... which the proletariat declares to be a bourgeois
lie – this machine the proletariat will smash. We shall use this machine, or
bludgeon to destroy all exploitation. And when the possibility of exploitation no
longer exists anywhere in the world, when there are no longer owners of land
and owners of factories, and when there is no longer a situation in which some
gorge while others starve, only when he possibility of this no longer exists shall
we consign this machine to the scrap-heap. Then there will ne state and no
exploitation.”

IDEALIST THEORIES OF THE STATE: THE SOCIAL CONTRACT

THEORY

33
V.I. Lenin, “The State,” A lecture delivered at the Sverdlov University, July 11, 1919, Lenin’s Collected Works,
4th ed, Progress Publishers, Moscow, 1972, pges 470-488..

M Gwisai, HRRDL Theories of State 2018 Page 13

The Social Contract theory and Natural Law Theories

A major and directly opposing theory to that of the Marxist theory is the Social Contract theory
of the State and Law, which is based on the philosophy of Idealism. The Social Contract Theory
is also identified as a variant of Natural Law theories of Law.

The Social Contract Theories are identifiable with early bourgeois philosophers like John Locke
(1632 – 1704) and Jean Jacque Rousseau. Theories provided the basis for the first bourgeois
revolutions in the 17th to 18th centuries, including the English Revolution and the French
Revolution and USA Declaration of Independence. This theory may be summarised as follows.

Rights in the State of Nature

Human beings originally existed in a state of nature in which there was no state or positive or
written law, but were rather governed by the Law of Nature --- or Law of God. In such state and
under such Law they had certain fundamental Rights and Duties --- the principal of which was
preservation of mankind --- as they were creations of a higher being – God. These rights and
duties under the Law of Nature are known to all human beings by virtue of being human beings
created by an All Mighty Creator and are imprinted in their hearts and souls. This can be broken
into the following derivative rights.
1. Right to absolute liberty --- to perfect freedom to order to their actions and dispose of
their p they possessions and persons as they think fit, but within the bounds of the law
of nature. Right to liberty includes other key rights, including: Right to life; Right to
health; Right to possessions or to property
2. Right to equality of all human beings – since they are all created in the image of the
same one God.
a. Only excerption is were the “Lord and Master of them all should by any
manifest declaration of His will set one above another, and confer on him
by an evident and clear appointment an undoubted right to dominion and
sovereignty. For men and women see - Genesis Chap 2; Verse 21.
3. Right to punish, alone or in unison with others, those who transgress one’s rights or
harm one’s property including up to the right to kill murderers – but only to an extent
proportionate to the degree of transgression. Therefore an eye for an eye etc: i.e above
a right to self remedy--- to self-execution
a. Purpose of punishment dual: to compensate the victims / innocent through
reparations; and to deter future transgressors --- Transgressor a noxious
creature or degenerate who has removed himself from living by the rules
of common reason and equity--- which have been created by God to
ensure mutual self security amongst humans.
b. Right to reparations from the transgressor.

In summary above certain characters and features of law according to the Natural Law theory
namely purpose of law is to achieve: liberty, freedom for all; to protect property; to maintain
social peace and harmony based on principles of fairness and equity including equitable
punishment of transgressors.

M Gwisai, HRRDL Theories of State 2018 Page 14

Duties
Under the state of nature and its law, not only are there rights but duties. These are fundamental
or inalienable human rights because available to all human beings by virtue of being human. The
duties included:

i. Duty of mutual love --- since equal must love one another, after all
creatures of one God – as l have loved you so must you love one
another. ‘When l was hungry you fed me ...” or the Camel and Eye of
a Needle Test
ii. Duty not to harm others or invade them in their life, health, liberty or
possessions other than in punishing transgressors.
iii. Duty to exercise restraint and not to be arbitrary in exercising the right
to punish, since right is not absolute or arbitrary. Need to exercise
calm reason and conscience dictate. Thus should not expose offender
to “the passionate heats or boundless extravagance of [his] will.”

Defects in the State of Nature which necessitated the State and Written Law
At a certain stage, there emerged the State and written or positive law. These arose because of
certain defects in the state of nature and Law of Nature. incl:
iv. If persons judges in their own cause “that self-love will make men
partial to themselves and their friends. And on the other side, that ill-
nature, passion, and revenge will carry them too far in punishing
others; and hence nothing but confusion and disorder will follow.” Or
“the passionate heats or boundless extravagance of [human] will.” In
other words – Passion or Interest inherent where one is “judge,
interpreter, and executioner” of his own cause.
v. To achieve effectiveness in protecting one rights and punishing and
deterring transgressors --- strength in numbers... “To avoid
inconveniences which disorder men’s properties in the state of nature,
men unite into societies that they may have the united strength of the
whole society to secure and defend their properties, and may have
standing rules to bound it by which everyone may know what is his.”

A political or civil society only comes into being when “any number of men are so united into
one society, as to quit every one his executive power of the law of nature, and to resign it to the
public...: “Those who are united into one body, and have a common established law and
judicature to appeal to, with authority to decide controversies between them, and punish
offenders, are in civil society one with another, but those who have no such common appeal ...
are still in the state of nature...”

BUT Social Contract is/was a voluntary process by free will of the people –
“Men, being ... by nature all free, equal, and independent, no one can be put out of this
estate and subjected to the political will of another without his own consent. The only
way whereby anyone diverts himself of his natural liberty and puts on the bonds of civil
society is by agreeing with other men to join and unite into a community for their

M Gwisai, HRRDL Theories of State 2018 Page 15

 comfortable, safe, and peaceable living one among another, in a secure enjoyment of
their properties and greater security against any that are not of it.”

Locke asserted that - ‘The end of government is the good of mankind.” And
‘therefore, whatever form the commonwealth is under, the ruling power ought to govern
by declared and received laws and not by extemporary dictates... for then mankind will
be in a far worse condition than in the state of nature if they shall have armed one or a
few men with the power of a multitude, to force them to obey at pleasure the exorbitant
and unlimited decrees of their sudden thoughts, or unrestrained, and till that moment
unknown wills, without having any measures set down which may guide and justify their
actions.”

Absolute Monarchy Tyranny is Inconsistent with the Social Contract

Absolute monarchy is whereby both legislative, executive, judicial power is united in one person
or office, whether entitled a prince, a czar, grand seignior or ‘president wema simba ose.’
For Locke such absolute monarchs or dictatorships are inconsistent with the Social Contract.
Rousseau states that – ‘Men are born free but everywhere are in chains.” Various reasons are
given to oppose this:
4. “Hence it is evident that absolute monarchy ...is indeed inconsistent with civil society,
and so can be no form of civil government at all; for the end of civil society being to
avoid and remedy those [the] inconveniences of the state of nature...” In such
situations there is no judge, or appellate body against the unjust acts of the ruler... and
therefore people would still be in the state of nature ‘with the only woeful difference
that to be the subject or rather slave, of an absolute prince: that whereas in the
ordinary state of nature he has a liberty to judge of his right and, according to the best
of his power, to maintain it; now, whenever his property is invaded by the will and
order of his monarch, he has not only no appeal as those in society ought to have
but, ... is denied a liberty to judge of, or to defend his right; and so is exposed to all
the misery and inconveniences that a man can fear from one who, being in the
unrestrained state of nature, is yet corrupted with flattery and armed with power...”

5. Against rational or reason why people went into Social Contract:

a. the legislature cannot have greater power than those who have created it
--- i. Cannot have more power than people had under the state of nature
“for nobody can transfer to another more power than he has in himself, or
over any other, to destroy his own life, or take away the life or property of
another...but only so much as the law of nature gave him for the
preservation of himself and the rest of mankind, and this is all he does or
can give up to the commonwealth, and by it to the legislative power, so
that the legislative can have no more than this. Their power, in the utmost
bounds of it, is limited to the public good of the society. It is a power that
has no other end but preservation, and therefore can never have a right to
destroy, enslave, or designedly to impoverish the subjects....Thus the law
of nature stands as an eternal rule to all men, legislators as well as others.
The rules that they make for other men’s actions must, as well as their
own and other men’s actions be comformable to the law of nature, i.e to

M Gwisai, HRRDL Theories of State 2018 Page 16

 the will of God, of which that is a declaration, and the fundamental law of
nature being the preservation of mankind, no human sanction can be good
or valid against it.”
b. “the legislative or supreme authority cannot assume to itself a power to
rule by extemporary, arbitrary decrees, but is bound to dispense justice,
and to decide the rights of the subject by promulgated, standing laws, and
known authorised judges.”
c. Irrational for humans to give such arbitrary power to one entity because
that would place them in a worse condition than in the state of nature
“wherein they had a liberty to defend their right against the injuries of
others, and were upon equal terms of force to maintain it, whether invaded
by a single man or many in combination. Whereas, by supposing they
have given up themselves to the absolute arbitrary power and will of a
legislator, they have disarmed themselves, and armed him, to make a prey
of them when pleases; he being in a much worse condition who is exposed
to the arbitrary power of one man, who has the command of 100 000, than
he that is exposed to the arbitrary power of 100 000 single men, nobody
being secure that his will, who has such a command, is better than that of
other men, though his force be 100 000 times stronger... And therefore,
whatever form the commonwealth is under...”
d. The supreme power cannot take from any man part of his property without
his own consent; for the preservation of property being the end of
government, and that for which men enter into society....

For Locke the solution to tyranny and dictatorship by the State and Law is the Right to Rebel and
Revolution by the people overthrowing the tyrannical regime. He rejects arguments by those who
argue that the above theory may lay “a foundation for rebellion” or a threat to world peace and
order because it tells “the people they are absolved from obedience when illegal attempts are
made upon their liberties or properties, and may oppose the unlawful violence of those who were
their magistrates when they invade their properties contrary to the trust put in them...” He says
those who say that:

“they may as well say, upon the same ground, that honest men may not oppose
robbers or pirates because this may occasion disorder or bloodshed...
The point being that if any mischief comes in such cases, it is not to be charged
upon him who defends his own right, but on him that invades his neighbour’s...

....If the innocent honest man must quietly quit all he has, for peace’s sake, to him
who will lay violence hands upon it, l desire it may be considered, what a kind of a
peace there will be in the world, which consists only in violence and rapine, and
which is to be maintained only for the benefit of robbers and oppressors. Who would
not think it an admirable peace betwixt the mighty and the mean when the lamb
without resistance yielded his throat to be torn by the imperious wolf...The end of
government is the good mankind. And which is best for mankind: that the people
should be always exposed to the boundless will of tyranny, or that the rulers should
be sometimes liable to be opposed when they grow exorbitant in the use of their

M Gwisai, HRRDL Theories of State 2018 Page 17

 power and employ it for the destruction and not the preservation of the properties of
their people?” --- i.e. No Peace Without Justice

Concepts of the Social Contract in African traditions and law

1. Elements of the Social Contract theory are present in Bantu philosophy. For instance the
concept of popular sovereignty as the basis of political power is covered both by the
Ndebele and Shonas. See:
- “Inkosi “Inkosi yinkosi ngabantu” or “ushe vanhu;” 34
- “gudo guru peta musve ndokuti vadiki vakutye;” 35
- “ushe madzoro hunoravanwa.” – Chieftainship should rotate.

2. On the other hand, the dialectical opposite, the absolute monarchy is also covered. See:
- “uTshaka usokhaya”, meaning oppression;
- “umongameli wemasimba ose” – all powerful leader;
- “Reva ishe wakakwira pachikomo” – Gossip against the King when you are on the
mountain top.

UNIVERSITY OF ZIMBABWE
34
A king is a King because of the people; chieftainship is by rotation;
35
The big baboon does not raise its tail, whilly nilly but keeps it down most of the time, thereby gaining the respect
and fear of the younger ones.

M Gwisai, HRRDL Theories of State 2018 Page 18

 FACULTY OF LAW
DEPARTMENT OF PUBLIC LAW
Course : History of Roman and Roman – Dutch Law LB104
Facilitator : M. Gwisai mgwisai@law.uz.ac.zw
Tutorial No. : Tutorial 3 – Theories of State and Law, 1st Sem. 2018

TUTORIAL 3: THEORIES OF STATE AND LAW

“Every State is an instrument of the rule of one class, a ‘machine’ for suppression used
against the other class. It serves to conserve, fortify and evolve that economic and
social order which best corresponds to the interests of the ruling class, as determined by
the mode of production.” V.I. Lenin

A. Social Contract and Natural Law theories Groups 1,2,3,4,5

1. Read the materials by J Locke and JJ Rousseau and answer the following questions:
a. What rights and obligations did humans have in the state of nature.
b. What were the “inconveniences” of the state of nature which compelled the
formation of the state and civil law.
c. Describe the essential elements of the “social contract” and how these remedied
the defects of the state of nature.
d. Locke viewed the absolute monarchy as inconsistent with the principles of the
social contract – why? What remedy-solution did he offer to deal with such a
problem.
e. What did Locke and Rousseau see as the ultimate fate of the state and law.
f. Identify what you consider to be underlying philosophy of the Social Contract
theories.

2. Analyse and compare the Constitution of Zimbabwe, 2013 and the Preamble to the
Universal Declaration of Human Rights, 1948 on the one hand and on the other, the
Constitution of Rhodesia of 1969 and identify two areas and provisions that you consider
to be:
a. Influenced and consistent with the Social Contract theory
b. Inconsistent with the Social Contract theory.

3. Discuss to what extent, if any, the Social Contract theory is vindicated in the emergence
of states and laws in pre-colonial Africa, with special reference to Southern Africa in the
period 900 to 1900. Garlake P & Proctor A Bk 1 and Beach DN.

B. Marxist and Materialist Theories of State and Law

Groups 6,7,8,9, 10,11,12

M Gwisai, HRRDL Theories of State 2018 Page 19

 4. Read the materials by V.I. Lenin, F Engels, V.G. Afanasyev and Garlake P & Proctor A
and answer the following questions:
a. Describe the principal features of productive forces and relations of production
during primitive communism, taking care to distinguish between the stages of
Savagery and that of Barbarism. Give any examples you are aware of drawn from
Zimbabwe and Africa.

b. What was the basic economic unit of production in such society?

i. Summarise some of the main features of the superstructure of this society
including in relation to culture, moral values; the types of families that
existed. In your answer include examples drawn from African Traditional
Religion, philosophy and customs.
c. According to Lenin what are the primary features and purposes of the state and
law?
d. Identify the various forms the state has taken over time.
e. Why do Lenin and Engels argue that the state and law will “wither away” under
communism.
5. Drawing examples from the Constitution of Zimbabwe, 2013and the 1969 Constitution of
Rhodesia on the one hand and on the other the 1918 Constitution of the Russian Soviet
Federated Socialist Republic, the 1917 Decree on Land and the 1918 Decree on Workers
Control and the 1918 Family Code on Marriage, the Family and Guardianship and the
1918 Decree on the Separation of Church and State identify and summarise any two
areas and provisions that you consider:
a. Validate the Marxist theory on the nature and purpose of the State and law.
b. Provide a contrary position to the Marxist theory on the emergence and purpose
of the state and law.
6. Discuss to what extent, if any, the Marxist theory is vindicated in the emergence of states
and laws in pre-colonial Africa, with special reference to Southern Africa in the period
900 to 1900. In your answer summarise the changes that occurred in the productive
forces and relations of production that led to the emergence of the state, law, classes and
the monogamous family. Refer to Garlake P & Proctor A Bk 1 and Beach DN.

C. Class Tutorials: Comparison of theories: For the whole class

7. With reference to John Locke and JJ Rousseau on the one hand and F. Engels and V.
Lenin, Afanasyev and Garlake P & Proctor A and on the other hand using examples drawn
from Zimbabwean and African history, compare and contrast their positions on -
a. The emergence of the state and law.
b. The purpose of the state and law.
c. The ultimate destiny of the state and law.
d. The underlying philosophical worldview of their theories.

References
Essential readings

M Gwisai, HRRDL Theories of State 2018 Page 20

 a. Lenin VI, The State , (Progress Publishers, Moscow, 1964), Chapter 1 “Class Society and the
State”
www.marxists.org/archive/lenin/works/1917/state
b. Locke J, The Second Treatise of Civil Government, (Cambridge Press, Cambridge, 1988), Chap II
Of the State of Nature; Of the beginnings of Political Society –
www.books.google.com>Philosophy
c. Makamure K, “Primitive Society and the Rise of the State and Law”, (Unpublished notes, Harare,
1988)
d. Lapena I, Soviet Penal Policy, London, 1968
e. Garlake P & Proctor A, People Making History Bk 1, (ZPH Publishers, Harare, 1985) 66-90.
f. Wikipedia, “San people” – https://en.wikipedia.org/wiki/San-people
g. Gwisai M, “Philosophy and Theories of State and Law” [ Unpublished, 2011, TSIME]

Other readings

h. Afanasyev VG, Marxist Philosophy, (Progress Publishers, Moscow, 1980), pp 281-307.

i. Engels F, The Origins of the Family, Private Property and The State, (Bookmarks, London, 1987),
Chapter IX “Barbarism and Civilisation” www.marxists.org/archive/marx/works/1884/origin-
family ;
j. Rousseau JJ, On the Social Contract, (Clarendon Press, Oxford, 1972), Book 1, Chapter VI; VII;
www.books.google.com>Philosophy .
k. Wessels JW, History of Roman Dutch Law, (African Book Co., Grahamstown, 1908), pp 1 – 9.
l. Makamure K. “A comparative study of Comrade’s courts under Socialist Legal Systems and
Zimbabwe’s Village Courts” 3 Zim. L. Rev 34 (1985) pp 42-45.
https://opendocs.ids.ac.uk/opendocs/bitstream/handle/123456789/6309/Makamure
m. Ncube W, “Lawyers against the Law? Judges and the legal profession in Rhodesia and
Zimbabwe” 14 Zim. L. Rev,108 (1997).
https://opendocs.ids.ac.uk/opendocs/bitstream/handle/123456789/6937/Ncube
n. Beach DN, The Shona and Zimbabwe 900-1850, (Mambo Press, Gweru), pp 36-51.
o. Chirkin V et. al, Fundamentals of the Socialist Theory of the State and Law, (Progress
Publishers, Moscow, 1985) pp 233-239.
.

“Rather it (the State) is a product of society at a certain stage of development.... it is the

admission that this society has become entangled on an insoluble contradiction with
itself, that it has split into irreconcilable antagonism which it is powerless to dispel. But in
order that these antagonisms, these classes with conflicting economic interest might not
consume themselves and society in fruitless struggle it has becomes necessary to have
a power ... this power arisen out of society but above it ... is the state.” F. Engels

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