[Type the company name]
LJU4801 MAY JUNE
PORTFOLIO (COMPLETE
ANSWERS) Semester 1 2025
- DUE 28 May 2025
NO PLAGIARISM
[Year]
,Exam (elaborations)
LJU4801 May/June Exam Memo | Due 23 - 28
May 2025Course
Legal Philosophy (LJU4801)
Institution
University Of South Africa (Unisa)
LJU4801 May/June Exam Memo | Due 23 - 28 May 2025. All questions fully
answered with references.
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 the law has nothing to do with the morality or immorality of the
prohibited conduct. 1.1 Identify and discuss the two philosophical
approaches being used here. Your answer should not exceed 750 words. (15)
. Legal Moralism
Legal moralism is the philosophical view that the law can and should be used to enforce
morality. Proponents of legal moralism believe that a society's laws should reflect and uphold its
shared moral values. In this view, certain actions are criminalized not necessarily because they
cause direct harm to others, but because they are considered inherently immoral or offensive to
societal norms.
In the South African context, the argument that the non-recognition of prostitution is due to its
"immorality" directly aligns with legal moralism. This perspective suggests that prostitution is
criminalized because it is seen as morally wrong, even if individuals engaging in it do so
voluntarily and without direct physical harm to others. The law, in this instance, is seen as a tool
to promote and preserve a particular moral order.
Key aspects of legal moralism include:
Paternalism: Often, legal moralism contains an element of paternalism, where the state
acts like a "father figure" to its citizens, protecting them from their own moral failings or
from engaging in activities deemed detrimental to their character or the moral fabric of
society.
Social Cohesion: Legal moralists might argue that a shared morality, enforced through
law, is essential for social cohesion and the well-being of the community. If certain
, actions are allowed that are widely considered immoral, it could erode social bonds and
lead to a decline in societal standards.
Historically Influenced: Historically, many laws have been rooted in moral beliefs,
particularly those related to sexual conduct, gambling, and drug use. The idea that "good
morals make good laws" is a core tenet.
Critics of legal moralism, however, often raise concerns about:
Pluralism: In diverse societies, there is rarely a single, universally agreed-upon morality.
Enforcing one set of moral beliefs through law can be seen as oppressive to those who
hold different views.
Individual Liberty: It can infringe upon individual liberty and autonomy by dictating
how individuals should live their private lives, even when their actions do not directly
harm others.
Defining Morality: Who defines what is "moral" and whose morality should be
enshrined in law? This can lead to arbitrary or discriminatory laws based on the dominant
moral views of a particular group.
2. Legal Positivism (with an anti-moralistic stance)
Legal positivism, in its broadest sense, is a philosophy of law that emphasizes the conventional
nature of law—that law is what humans make it to be. It asserts that there is no necessary
connection between law and morality. For a legal positivist, the validity of a law depends on its
source (e.g., whether it was enacted by a legitimate authority through proper procedures), not on
its moral content.
The argument that "the law has nothing to do with the morality or immorality of the prohibited
conduct" is a clear expression of a legal positivist, specifically anti-moralistic, viewpoint. This
perspective suggests that prostitution is criminalized not because it's immoral, but because a
legitimate legal authority (Parliament, through the Sexual Offences Act) has enacted a law
prohibiting it. The reason for the law's existence might be historical, practical, or even
misguided, but its validity as law does not depend on its moral righteousness.
Key aspects of this anti-moralistic stance within legal positivism include:
Separation of Law and Morals: This is the core tenet. A legal positivist maintains that
what the law is is distinct from what the law ought to be. A morally reprehensible law can
still be a valid law if it was properly enacted.
Focus on Procedures and Sources: The focus is on the formal criteria for a law's
validity – was it enacted by the correct body, following the correct procedures?
Skepticism of Paternalism: Proponents of this view often express skepticism about the
state's role in enforcing private morality, arguing that the law should primarily be
concerned with preventing harm to others (the "harm principle").
Liberty and Autonomy: This approach often prioritizes individual liberty, arguing that
adults should be free to engage in activities of their choosing as long as they do not
, directly harm others. The criminalization of victimless crimes (like prostitution, in this
view) is seen as an overreach of state power.
Critics of strict legal positivism (especially those leaning towards anti-moralism) sometimes
argue:
Ignoring Moral Force: While a law's validity might not depend on its morality, many
people obey laws precisely because they perceive them as morally just. Ignoring this
connection can lead to a shallow understanding of legal obedience.
Potential for Injustice: A strict separation of law and morality can be seen as
problematic when confronting unjust laws. If the law is what it is, then how can one
challenge its moral failings?
In summary, the South African debate on prostitution's criminalization beautifully illustrates the
tension between these two fundamental legal philosophies: the desire to use law as a moral
instrument versus the view that law should operate independently of moral judgments, focusing
instead on formal validity and harm prevention.
.1 Philosophical Approaches to Law: Natural Law Theory and Legal Positivism
The scenario presented reflects two distinct philosophical approaches to understanding and
interpreting the law: Natural Law Theory and Legal Positivism.
1. Natural Law Theory
Definition and Overview
Natural law theory asserts that there is a close connection between law and morality. According
to this theory, laws are valid only if they are grounded in moral principles that are inherent in
human nature and discoverable through reason. In other words, an unjust law is not a true law.
This approach is rooted in the works of ancient philosophers like Plato and Aristotle, and
further developed by Thomas Aquinas, who believed that human-made laws (positive laws)
must conform to divine and natural law to be legitimate.
Key Characteristics
Moral Basis: Natural law views the law as reflecting moral or ethical standards.
Objective Morality: It assumes the existence of universal moral principles that apply to
all human beings.
LJU4801 MAY JUNE
PORTFOLIO (COMPLETE
ANSWERS) Semester 1 2025
- DUE 28 May 2025
NO PLAGIARISM
[Year]
,Exam (elaborations)
LJU4801 May/June Exam Memo | Due 23 - 28
May 2025Course
Legal Philosophy (LJU4801)
Institution
University Of South Africa (Unisa)
LJU4801 May/June Exam Memo | Due 23 - 28 May 2025. All questions fully
answered with references.
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 the law has nothing to do with the morality or immorality of the
prohibited conduct. 1.1 Identify and discuss the two philosophical
approaches being used here. Your answer should not exceed 750 words. (15)
. Legal Moralism
Legal moralism is the philosophical view that the law can and should be used to enforce
morality. Proponents of legal moralism believe that a society's laws should reflect and uphold its
shared moral values. In this view, certain actions are criminalized not necessarily because they
cause direct harm to others, but because they are considered inherently immoral or offensive to
societal norms.
In the South African context, the argument that the non-recognition of prostitution is due to its
"immorality" directly aligns with legal moralism. This perspective suggests that prostitution is
criminalized because it is seen as morally wrong, even if individuals engaging in it do so
voluntarily and without direct physical harm to others. The law, in this instance, is seen as a tool
to promote and preserve a particular moral order.
Key aspects of legal moralism include:
Paternalism: Often, legal moralism contains an element of paternalism, where the state
acts like a "father figure" to its citizens, protecting them from their own moral failings or
from engaging in activities deemed detrimental to their character or the moral fabric of
society.
Social Cohesion: Legal moralists might argue that a shared morality, enforced through
law, is essential for social cohesion and the well-being of the community. If certain
, actions are allowed that are widely considered immoral, it could erode social bonds and
lead to a decline in societal standards.
Historically Influenced: Historically, many laws have been rooted in moral beliefs,
particularly those related to sexual conduct, gambling, and drug use. The idea that "good
morals make good laws" is a core tenet.
Critics of legal moralism, however, often raise concerns about:
Pluralism: In diverse societies, there is rarely a single, universally agreed-upon morality.
Enforcing one set of moral beliefs through law can be seen as oppressive to those who
hold different views.
Individual Liberty: It can infringe upon individual liberty and autonomy by dictating
how individuals should live their private lives, even when their actions do not directly
harm others.
Defining Morality: Who defines what is "moral" and whose morality should be
enshrined in law? This can lead to arbitrary or discriminatory laws based on the dominant
moral views of a particular group.
2. Legal Positivism (with an anti-moralistic stance)
Legal positivism, in its broadest sense, is a philosophy of law that emphasizes the conventional
nature of law—that law is what humans make it to be. It asserts that there is no necessary
connection between law and morality. For a legal positivist, the validity of a law depends on its
source (e.g., whether it was enacted by a legitimate authority through proper procedures), not on
its moral content.
The argument that "the law has nothing to do with the morality or immorality of the prohibited
conduct" is a clear expression of a legal positivist, specifically anti-moralistic, viewpoint. This
perspective suggests that prostitution is criminalized not because it's immoral, but because a
legitimate legal authority (Parliament, through the Sexual Offences Act) has enacted a law
prohibiting it. The reason for the law's existence might be historical, practical, or even
misguided, but its validity as law does not depend on its moral righteousness.
Key aspects of this anti-moralistic stance within legal positivism include:
Separation of Law and Morals: This is the core tenet. A legal positivist maintains that
what the law is is distinct from what the law ought to be. A morally reprehensible law can
still be a valid law if it was properly enacted.
Focus on Procedures and Sources: The focus is on the formal criteria for a law's
validity – was it enacted by the correct body, following the correct procedures?
Skepticism of Paternalism: Proponents of this view often express skepticism about the
state's role in enforcing private morality, arguing that the law should primarily be
concerned with preventing harm to others (the "harm principle").
Liberty and Autonomy: This approach often prioritizes individual liberty, arguing that
adults should be free to engage in activities of their choosing as long as they do not
, directly harm others. The criminalization of victimless crimes (like prostitution, in this
view) is seen as an overreach of state power.
Critics of strict legal positivism (especially those leaning towards anti-moralism) sometimes
argue:
Ignoring Moral Force: While a law's validity might not depend on its morality, many
people obey laws precisely because they perceive them as morally just. Ignoring this
connection can lead to a shallow understanding of legal obedience.
Potential for Injustice: A strict separation of law and morality can be seen as
problematic when confronting unjust laws. If the law is what it is, then how can one
challenge its moral failings?
In summary, the South African debate on prostitution's criminalization beautifully illustrates the
tension between these two fundamental legal philosophies: the desire to use law as a moral
instrument versus the view that law should operate independently of moral judgments, focusing
instead on formal validity and harm prevention.
.1 Philosophical Approaches to Law: Natural Law Theory and Legal Positivism
The scenario presented reflects two distinct philosophical approaches to understanding and
interpreting the law: Natural Law Theory and Legal Positivism.
1. Natural Law Theory
Definition and Overview
Natural law theory asserts that there is a close connection between law and morality. According
to this theory, laws are valid only if they are grounded in moral principles that are inherent in
human nature and discoverable through reason. In other words, an unjust law is not a true law.
This approach is rooted in the works of ancient philosophers like Plato and Aristotle, and
further developed by Thomas Aquinas, who believed that human-made laws (positive laws)
must conform to divine and natural law to be legitimate.
Key Characteristics
Moral Basis: Natural law views the law as reflecting moral or ethical standards.
Objective Morality: It assumes the existence of universal moral principles that apply to
all human beings.
