LEGAL PHILOSOPHY
May/June 2025
LJU4801
LEGAL PHILOSOPHY
1.1 Identifying and Discussing Two Philosophical Approaches to the
Criminalisation of Prostitution in South Africa
The criminalisation of prostitution in South Africa under the Sexual Offences Act 23 of
1957 has generated significant debate, revealing two predominant philosophical
approaches: the moralistic approach and the legal positivist approach.
Moralistic Approach
The moralistic approach to criminalisation of prostitution suggests that the law should
reflect social morality and moral standards. Supporters of this approach argue that
prostitution is naturally immoral and weakens the cloth of society. This perspective lies
deeply in traditional ideas of sexuality and gender roles, which often frame prostitution
as exploitative and derogatory, especially towards women. The moral approach
emphasises the protection of social values and suggests that legal prohibition against
prostitution works to maintain a moral order and discourage harmful behaviour to
individuals and society on a large scale.
Supporters of this perspective can apply the idea of "public morality", arguing that the
law should work to promote and protect the moral standards of the community. By
criminalisation of prostitution, the state wants to prevent unethical individuals from
engaging in immoral conduct, which strengthens social norms and values. The
underlying perception is that legal restrictions can effectively change behaviour and
discourage participation in activities considered morally objectionable.
Legal Positivist Approach
Conversely, the legal obliteration approach suggests that laws and morality are different
institutions. Legal positive people argue that the validity of a law is not casual on its
, moral implications but on its enclosed legal processes. From this point of view,
criminalisation of prostitution is viewed through legally outlined statutory interpretation
and the lens of the legislature's authority rather than moral ideas.
Legal obliterates the claim that laws should be evaluated on the basis of following
procedural validity and not on their alignment with social morality. This approach
emphasises the importance of legal certainty, arguing that the law should be clear,
approximate and accessible. In the context of prostitution, a legal oblique may argue
that the law reflects the will of the legislature, which has determined through democratic
procedures that prostitution should be criminalised for reasons that may involve public
health concerns, prevention of exploitation, or social systems, rather than a reflection of
moral decisions.
Conclusion
In summary, the debate around the criminalisation of prostitution in South Africa reveals
two philosophical approaches: the moral approach, which sees the law as a tool to
implement social morality, and the legal positive attitude, which separates the law from
morality and focuses on legal validity. Each perspective provides valuable insight into
the complications of legal regulation related to prostitution, which reflects a wide social
outlook towards the role of the state in regulating sexuality, autonomy and personal
conduct.
1.2 The South African Position on Prostitution: Law or Immorality According to
Positivist Theory
The positivist theory of adjudication, which asserts that law is a system of rules created
and enforced by the state, provides a framework for analysing the South African legal
position on prostitution. Under this theory, the legitimacy of laws is derived from their
enactment through proper legislative processes, rather than from their moral
implications.
The Nature of Law in South Africa
May/June 2025
LJU4801
LEGAL PHILOSOPHY
1.1 Identifying and Discussing Two Philosophical Approaches to the
Criminalisation of Prostitution in South Africa
The criminalisation of prostitution in South Africa under the Sexual Offences Act 23 of
1957 has generated significant debate, revealing two predominant philosophical
approaches: the moralistic approach and the legal positivist approach.
Moralistic Approach
The moralistic approach to criminalisation of prostitution suggests that the law should
reflect social morality and moral standards. Supporters of this approach argue that
prostitution is naturally immoral and weakens the cloth of society. This perspective lies
deeply in traditional ideas of sexuality and gender roles, which often frame prostitution
as exploitative and derogatory, especially towards women. The moral approach
emphasises the protection of social values and suggests that legal prohibition against
prostitution works to maintain a moral order and discourage harmful behaviour to
individuals and society on a large scale.
Supporters of this perspective can apply the idea of "public morality", arguing that the
law should work to promote and protect the moral standards of the community. By
criminalisation of prostitution, the state wants to prevent unethical individuals from
engaging in immoral conduct, which strengthens social norms and values. The
underlying perception is that legal restrictions can effectively change behaviour and
discourage participation in activities considered morally objectionable.
Legal Positivist Approach
Conversely, the legal obliteration approach suggests that laws and morality are different
institutions. Legal positive people argue that the validity of a law is not casual on its
, moral implications but on its enclosed legal processes. From this point of view,
criminalisation of prostitution is viewed through legally outlined statutory interpretation
and the lens of the legislature's authority rather than moral ideas.
Legal obliterates the claim that laws should be evaluated on the basis of following
procedural validity and not on their alignment with social morality. This approach
emphasises the importance of legal certainty, arguing that the law should be clear,
approximate and accessible. In the context of prostitution, a legal oblique may argue
that the law reflects the will of the legislature, which has determined through democratic
procedures that prostitution should be criminalised for reasons that may involve public
health concerns, prevention of exploitation, or social systems, rather than a reflection of
moral decisions.
Conclusion
In summary, the debate around the criminalisation of prostitution in South Africa reveals
two philosophical approaches: the moral approach, which sees the law as a tool to
implement social morality, and the legal positive attitude, which separates the law from
morality and focuses on legal validity. Each perspective provides valuable insight into
the complications of legal regulation related to prostitution, which reflects a wide social
outlook towards the role of the state in regulating sexuality, autonomy and personal
conduct.
1.2 The South African Position on Prostitution: Law or Immorality According to
Positivist Theory
The positivist theory of adjudication, which asserts that law is a system of rules created
and enforced by the state, provides a framework for analysing the South African legal
position on prostitution. Under this theory, the legitimacy of laws is derived from their
enactment through proper legislative processes, rather than from their moral
implications.
The Nature of Law in South Africa
