,Question 1
Read the following scenario and then answer the question below:
In South Africa, prostitution constitutes a crime in terms of the Sexual
Offences Act 23 of 1957. There are divergent views on the rationale
behind the criminalisation of prostitution. Some attribute the non-
recognition of prostitution to the immorality of the conduct, while others
are of the opinion that
1.1: Identify and discuss the two philosophical approaches being
used here. (15 marks, max 750 words)
The scenario presents a legal dilemma around the criminalisation of
prostitution in South Africa under the Sexual Offences Act 23 of 1957.
Two prominent philosophical approaches emerge from this issue: Natural
Law Theory and Legal Positivism.
1. Natural Law Theory
Natural law theorists argue that the validity of a law is intrinsically
connected to morality. According to this view, a legal rule that lacks moral
content cannot be considered true law. Proponents such as Thomas
Aquinas contend that law is "an ordinance of reason for the common good"
and must be rooted in moral values (Aquinas, Summa Theologica, I-II, Q.
90, Art. 4). In the context of prostitution, those supporting natural law might
argue that its criminalisation reflects society's moral condemnation of the
act. The law, according to this view, upholds the moral fabric of society by
prohibiting behaviour considered immoral or degrading (Finnis, 1980).
Natural law theory maintains that unjust laws those not in harmony with
moral principles fail to bind in conscience and should not be obeyed as
George (1999) explains. From this standpoint, laws against prostitution are
justified not only on legal grounds but also as moral imperatives designed
to preserve human dignity and social decency.
This aligns with traditional South African jurisprudence during the apartheid
era, where morality (often Christian-informed) played a significant role in
, shaping laws. Even in post-apartheid jurisprudence, vestiges of moral-
based reasoning continue to surface in legislation affecting bodily
autonomy and sexual conduct.
Natural law theory implies that the criminal law is not merely a mechanism
of state control but a reflection of collective ethical judgments. Accordingly,
prostitution may be criminalised not because of its harm in a strictly
legalistic sense, but because it is viewed as an affront to human dignity and
communal moral standards (Finnis, 2011: 23).
2. Legal Positivism
Legal positivism, in contrast, insists on the separation of law and morality.
The central tenet of this school, articulated by theorists such as John Austin
and H.L.A. Hart, is that law is law because it is enacted by a recognized
authority, not because it is just or moral (Austin, 1832; Hart, 1961). Hart
specifically distinguished between the "internal morality of law" and external
moral considerations, arguing that the validity of a legal rule depends on its
source rather than its moral content (Hart, 1961).
According to legal positivism, the criminalisation of prostitution is valid
merely because it follows the formal processes of legislative enactment,
regardless of whether it reflects any moral position. For instance, Section
20(1)(aA) of the Sexual Offences Act criminalises acts associated with
prostitution, and under positivist analysis, this section is legally valid
because it was duly promulgated by Parliament and entered into force
according to the procedural requirements of the Constitution. Legal
positivists would argue that any law passed by a legitimate legislative
authority and consistent with the Constitution qualifies as “law”, even if it is
widely considered immoral (Raz, 1979). The question of whether
prostitution should be legal or not becomes a matter of legislative policy,
not of legality per se.
Conclusion
Read the following scenario and then answer the question below:
In South Africa, prostitution constitutes a crime in terms of the Sexual
Offences Act 23 of 1957. There are divergent views on the rationale
behind the criminalisation of prostitution. Some attribute the non-
recognition of prostitution to the immorality of the conduct, while others
are of the opinion that
1.1: Identify and discuss the two philosophical approaches being
used here. (15 marks, max 750 words)
The scenario presents a legal dilemma around the criminalisation of
prostitution in South Africa under the Sexual Offences Act 23 of 1957.
Two prominent philosophical approaches emerge from this issue: Natural
Law Theory and Legal Positivism.
1. Natural Law Theory
Natural law theorists argue that the validity of a law is intrinsically
connected to morality. According to this view, a legal rule that lacks moral
content cannot be considered true law. Proponents such as Thomas
Aquinas contend that law is "an ordinance of reason for the common good"
and must be rooted in moral values (Aquinas, Summa Theologica, I-II, Q.
90, Art. 4). In the context of prostitution, those supporting natural law might
argue that its criminalisation reflects society's moral condemnation of the
act. The law, according to this view, upholds the moral fabric of society by
prohibiting behaviour considered immoral or degrading (Finnis, 1980).
Natural law theory maintains that unjust laws those not in harmony with
moral principles fail to bind in conscience and should not be obeyed as
George (1999) explains. From this standpoint, laws against prostitution are
justified not only on legal grounds but also as moral imperatives designed
to preserve human dignity and social decency.
This aligns with traditional South African jurisprudence during the apartheid
era, where morality (often Christian-informed) played a significant role in
, shaping laws. Even in post-apartheid jurisprudence, vestiges of moral-
based reasoning continue to surface in legislation affecting bodily
autonomy and sexual conduct.
Natural law theory implies that the criminal law is not merely a mechanism
of state control but a reflection of collective ethical judgments. Accordingly,
prostitution may be criminalised not because of its harm in a strictly
legalistic sense, but because it is viewed as an affront to human dignity and
communal moral standards (Finnis, 2011: 23).
2. Legal Positivism
Legal positivism, in contrast, insists on the separation of law and morality.
The central tenet of this school, articulated by theorists such as John Austin
and H.L.A. Hart, is that law is law because it is enacted by a recognized
authority, not because it is just or moral (Austin, 1832; Hart, 1961). Hart
specifically distinguished between the "internal morality of law" and external
moral considerations, arguing that the validity of a legal rule depends on its
source rather than its moral content (Hart, 1961).
According to legal positivism, the criminalisation of prostitution is valid
merely because it follows the formal processes of legislative enactment,
regardless of whether it reflects any moral position. For instance, Section
20(1)(aA) of the Sexual Offences Act criminalises acts associated with
prostitution, and under positivist analysis, this section is legally valid
because it was duly promulgated by Parliament and entered into force
according to the procedural requirements of the Constitution. Legal
positivists would argue that any law passed by a legitimate legislative
authority and consistent with the Constitution qualifies as “law”, even if it is
widely considered immoral (Raz, 1979). The question of whether
prostitution should be legal or not becomes a matter of legislative policy,
not of legality per se.
Conclusion
