,LJU4801 MAY JUNE PORTFOLIO (COMPLETE
ANSWERS) Semester 1 2025 - DUE 28 May 2025;
100% TRUSTED Complete, trusted solutions and
explanations.
MULTIPLE CHOICE,ASSURED EXCELLENECE
Question 1
1.1 Identify and discuss the two philosophical approaches
being used here. (15 marks)
The scenario reflects two philosophical approaches to law:
natural law theory and legal positivism.
Natural Law Theory:
This approach posits that the validity of law is inherently
tied to morality. Proponents believe that laws must
conform to moral principles that are universal and
immutable. In the context of prostitution, natural law
theorists argue that prostitution is criminalised because it
is inherently immoral. The law reflects society's collective
moral values, and thus, laws against prostitution are
justified based on moral grounds.
Legal Positivism:
This school of thought maintains that law and morality
are separate entities. According to positivists, a law is
valid not because it is moral, but because it has been
enacted by a legitimate authority following established
, procedures. Those who assert that the criminalisation of
prostitution is not about morality but about the law itself
adopt this view. They believe the law prohibits
prostitution because it has been formally declared illegal,
regardless of moral considerations.
These divergent views represent a fundamental philosophical
debate in jurisprudence about the role of morality in the
formulation and interpretation of law.
1.2 According to the positivist theory of adjudication, is the
South African position on prostitution based on law or
immorality? (15 marks)
According to legal positivism, the South African position on
prostitution is based on law, not morality. Legal positivists
argue that the legitimacy of a law comes from its proper
enactment by a recognised authority and not from its moral
content.
In this case, prostitution is criminalised under the Sexual
Offences Act 23 of 1957, which was passed through
appropriate legislative processes. Therefore, its status as a
crime is grounded in its legal codification, not its perceived
immorality. The courts, adhering to positivist principles, are
expected to apply the law as it stands, regardless of their
personal or societal moral views about prostitution.
, Legal positivist theorists such as H.L.A. Hart emphasise the
"rule of recognition," which determines the criteria for legal
validity. Under this framework, if a law meets the criteria of
the legal system, it is considered valid. Hence, the
criminalisation of prostitution in South Africa is valid because
it meets the formal requirements of law-making, irrespective
of moral debate.
In summary, under positivist adjudication, the focus is on the
existence and application of the law itself, not the morality
behind it. Hence, the criminalisation of prostitution in South
Africa is a legal issue, not a moral one, from this perspective.
Question 2
2.1 From the objectivist theories’ perspective, judges are part
of a community of interpreters and this community
determines how judges must decide cases. Discuss what this
perspective entails. (10 marks)
Objectivist theories, particularly Ronald Dworkin's
communalist theory, argue that legal interpretation is not a
solitary act but a communal one. Judges are part of a legal
community with shared principles, practices, and interpretive
standards.
According to Dworkin, law is an interpretive practice, and legal
reasoning involves fitting new cases within the existing legal
ANSWERS) Semester 1 2025 - DUE 28 May 2025;
100% TRUSTED Complete, trusted solutions and
explanations.
MULTIPLE CHOICE,ASSURED EXCELLENECE
Question 1
1.1 Identify and discuss the two philosophical approaches
being used here. (15 marks)
The scenario reflects two philosophical approaches to law:
natural law theory and legal positivism.
Natural Law Theory:
This approach posits that the validity of law is inherently
tied to morality. Proponents believe that laws must
conform to moral principles that are universal and
immutable. In the context of prostitution, natural law
theorists argue that prostitution is criminalised because it
is inherently immoral. The law reflects society's collective
moral values, and thus, laws against prostitution are
justified based on moral grounds.
Legal Positivism:
This school of thought maintains that law and morality
are separate entities. According to positivists, a law is
valid not because it is moral, but because it has been
enacted by a legitimate authority following established
, procedures. Those who assert that the criminalisation of
prostitution is not about morality but about the law itself
adopt this view. They believe the law prohibits
prostitution because it has been formally declared illegal,
regardless of moral considerations.
These divergent views represent a fundamental philosophical
debate in jurisprudence about the role of morality in the
formulation and interpretation of law.
1.2 According to the positivist theory of adjudication, is the
South African position on prostitution based on law or
immorality? (15 marks)
According to legal positivism, the South African position on
prostitution is based on law, not morality. Legal positivists
argue that the legitimacy of a law comes from its proper
enactment by a recognised authority and not from its moral
content.
In this case, prostitution is criminalised under the Sexual
Offences Act 23 of 1957, which was passed through
appropriate legislative processes. Therefore, its status as a
crime is grounded in its legal codification, not its perceived
immorality. The courts, adhering to positivist principles, are
expected to apply the law as it stands, regardless of their
personal or societal moral views about prostitution.
, Legal positivist theorists such as H.L.A. Hart emphasise the
"rule of recognition," which determines the criteria for legal
validity. Under this framework, if a law meets the criteria of
the legal system, it is considered valid. Hence, the
criminalisation of prostitution in South Africa is valid because
it meets the formal requirements of law-making, irrespective
of moral debate.
In summary, under positivist adjudication, the focus is on the
existence and application of the law itself, not the morality
behind it. Hence, the criminalisation of prostitution in South
Africa is a legal issue, not a moral one, from this perspective.
Question 2
2.1 From the objectivist theories’ perspective, judges are part
of a community of interpreters and this community
determines how judges must decide cases. Discuss what this
perspective entails. (10 marks)
Objectivist theories, particularly Ronald Dworkin's
communalist theory, argue that legal interpretation is not a
solitary act but a communal one. Judges are part of a legal
community with shared principles, practices, and interpretive
standards.
According to Dworkin, law is an interpretive practice, and legal
reasoning involves fitting new cases within the existing legal
