LJU4801
Assignment 2
Semester 2 2023
,QUESTION 1 (2 ANSWERS PROVIDED)
Introduction:
The issue of homosexuality has been a matter of ongoing debate
worldwide, often raising questions about how legal jurisdictions approach
the subject. In the case of South Africa, Section 9 of the Constitution 1
prohibits discrimination based on sexual orientation, and the country
recognized same-sex marriages through the Civil Union Act of 20062. This
discussion aims to evaluate whether South Africa's position on
homosexuality is based on law or morality, using the positivist theory of
adjudication as a framework for analysis.
Positivist Theory of Adjudication:
According to legal positivism, the validity and legitimacy of law derive
from its source (primarily legislation and the Constitution) rather than
moral or ethical considerations. Judges following this theory interpret and
apply the law based on its formal sources, aiming to remain neutral and
detached from their personal values or societal beliefs. They rely on
statutes, case precedents, and constitutional provisions to determine the
legality of any given issue.
Constitutional Prohibition of Discrimination:
The South African Constitution of 1996, through Section 93, explicitly
safeguards individuals from discrimination on the grounds of sexual
orientation. This constitutional provision reflects the values of equality and
non-discrimination, which form the foundation of South Africa's legal
framework. By itself, the inclusion of this provision emphasizes that the
South African position on homosexuality stems from legal principles rather
than traditional morality.
Recognition of Same-Sex Marriages:
The enactment of the Civil Union Act in 2006 in South Africa legally
recognized same- sex marriages. This legislation allows same-sex couples
to enter into a union with the same legal rights and protections as
opposite-sex marriages. By granting legal
1
Constitution of the Republic of South Africa Act 108 of 1996 3
2
The Civil Union Act 17 of 2006 intends: to provide for the solemnisation of civil unions, by way of either a C
marriage or civil partnership; the legal consequences of civil unions; and. to provide for matters incidental o
thereto. ns
, titution of the Republic of South Africa Act 108 of 1996
Assignment 2
Semester 2 2023
,QUESTION 1 (2 ANSWERS PROVIDED)
Introduction:
The issue of homosexuality has been a matter of ongoing debate
worldwide, often raising questions about how legal jurisdictions approach
the subject. In the case of South Africa, Section 9 of the Constitution 1
prohibits discrimination based on sexual orientation, and the country
recognized same-sex marriages through the Civil Union Act of 20062. This
discussion aims to evaluate whether South Africa's position on
homosexuality is based on law or morality, using the positivist theory of
adjudication as a framework for analysis.
Positivist Theory of Adjudication:
According to legal positivism, the validity and legitimacy of law derive
from its source (primarily legislation and the Constitution) rather than
moral or ethical considerations. Judges following this theory interpret and
apply the law based on its formal sources, aiming to remain neutral and
detached from their personal values or societal beliefs. They rely on
statutes, case precedents, and constitutional provisions to determine the
legality of any given issue.
Constitutional Prohibition of Discrimination:
The South African Constitution of 1996, through Section 93, explicitly
safeguards individuals from discrimination on the grounds of sexual
orientation. This constitutional provision reflects the values of equality and
non-discrimination, which form the foundation of South Africa's legal
framework. By itself, the inclusion of this provision emphasizes that the
South African position on homosexuality stems from legal principles rather
than traditional morality.
Recognition of Same-Sex Marriages:
The enactment of the Civil Union Act in 2006 in South Africa legally
recognized same- sex marriages. This legislation allows same-sex couples
to enter into a union with the same legal rights and protections as
opposite-sex marriages. By granting legal
1
Constitution of the Republic of South Africa Act 108 of 1996 3
2
The Civil Union Act 17 of 2006 intends: to provide for the solemnisation of civil unions, by way of either a C
marriage or civil partnership; the legal consequences of civil unions; and. to provide for matters incidental o
thereto. ns
, titution of the Republic of South Africa Act 108 of 1996
