PORTFOLIO
answeRs
MaY/JUne 2025
LJU4801
LeGaL PHILOsOPHY
DUe 28 MaY 2025
QUESTION 1
1.1 Philosophical Approaches to the Criminalisation of Prostitution
The criminalisation of prostitution in South Africa reflects two dominant
philosophical frameworks: legal moralism and legal positivism.
Which the Legal moralism holds that the law may legitimately be used to prohibit
behaviour deemed immoral, even when that behaviour does not cause harm to
others. Proponents argue that prostitution erodes the moral fabric of society and,
as such, must be criminalised to uphold communal moral standards. According to
this view, the function of law is to reflect and enforce societal moral values.1
Then the Legal positivism, on the other hand, maintains that the law is valid not
because it reflects moral norms but because it is enacted by legitimate authority.
The legal positivist perspective asserts that whether prostitution is moral or
immoral is irrelevant to its legality; what matters is whether it is proscribed by the
law. H.L.A. Hart, a leading positivist, famously distinguished between law as it is
and law as it ought to be.2 Positivism thus views the law prohibiting prostitution as
a matter of legislative will, not moral consensus.
1 Feinberg, J. Harm to Others: The Moral Limits of the Criminal Law. Oxford University Press, 1984, at
15.
2 Hart, H.L.A. The Concept of Law, 2nd ed. Oxford University Press, 1994, at 185.
answeRs
MaY/JUne 2025
LJU4801
LeGaL PHILOsOPHY
DUe 28 MaY 2025
QUESTION 1
1.1 Philosophical Approaches to the Criminalisation of Prostitution
The criminalisation of prostitution in South Africa reflects two dominant
philosophical frameworks: legal moralism and legal positivism.
Which the Legal moralism holds that the law may legitimately be used to prohibit
behaviour deemed immoral, even when that behaviour does not cause harm to
others. Proponents argue that prostitution erodes the moral fabric of society and,
as such, must be criminalised to uphold communal moral standards. According to
this view, the function of law is to reflect and enforce societal moral values.1
Then the Legal positivism, on the other hand, maintains that the law is valid not
because it reflects moral norms but because it is enacted by legitimate authority.
The legal positivist perspective asserts that whether prostitution is moral or
immoral is irrelevant to its legality; what matters is whether it is proscribed by the
law. H.L.A. Hart, a leading positivist, famously distinguished between law as it is
and law as it ought to be.2 Positivism thus views the law prohibiting prostitution as
a matter of legislative will, not moral consensus.
1 Feinberg, J. Harm to Others: The Moral Limits of the Criminal Law. Oxford University Press, 1984, at
15.
2 Hart, H.L.A. The Concept of Law, 2nd ed. Oxford University Press, 1994, at 185.
