LLB with Munyai
Legal philosophy draft 2025 semester 2
November portfolio memorandum
Documents are provided in the annexure
,Question 1
1. Introduction
In his 1962 courtroom address, Nelson Mandela declared:
“The whole life of any thinking African in this country drives him continuously to a conflict
between his conscience on the one hand and the law on the other.” This pronouncement, made
in the context of apartheid’s racialised legality, articulates one of jurisprudence’s most persistent
problems: the relationship between law and morality. Mandela’s words can be situated within
the philosophical debate between natural law and legal positivism, as well as in the African
moral tradition of ubuntu.
Definition of debate
The Kroeze IJ defines the debate as one that asks whether the law should enforce moral
convictions or whether the validity of law depends on its moral content (p. 61–63). Natural law
theorists assert that unjust laws lack true validity, while positivists maintain that a law remains
law so long as it is properly enacted, regardless of its moral content (p. 61). This is expressed
succinctly: “The validity of the law is therefore dependent on its moral content… We call this
kind of thinking natural law. The second group rejects this idea… We call this kind of thinking
legal positivism.” (p. 61).
Natural Law Theory
Natural law holds that there exists an eternal and universal ideal of justice which is a “yardstick
by which human law can be judged” (p. 63). From Plato and Aristotle through Aquinas to
modern theorists like Finnis, natural law asserts that reason discerns immutable moral truths
that precede positive enactments (p. 65–75). The Kroeze IJ emphasizes that for natural law
thinkers, “All positive (human) law… must meet the requirements of natural law” (p. 65).
Mandela’s invocation of conscience as a moral compass mirrors this natural-law conviction:
when state law contradicts moral law, the latter must prevail.
Legal Positivism
By contrast, legal positivism rejects the metaphysical foundations of natural law. It is described
as an English invention rooted in Enlightenment empiricism (p. 77–79). Positivists “separate
facts and values” and insist that “the validity of a duly enacted law can never depend on its
moral content” (p. 81). For H.L.A. Hart, a law may be “morally iniquitous” yet remain valid law (p.
81). Positivism thus defines law as a social fact, not a moral order. The Kroeze IJ notes that
“legal positivism makes it possible to criticise the law” precisely because it distinguishes
between what is law and what ought to be (p. 83). This view, however, risks moral detachment,
which Mandela denounced in apartheid’s moral vacuum.
The Hart–Devlin Debate
The positivist-natural law divide is epitomised in the Hart–Devlin debate (p. 85–87). Hart
argued that law and morality are conceptually distinct: morally bad laws are still laws, though
they should be opposed politically. Devlin countered that law must enforce shared moral
,standards to preserve social cohesion, claiming that “immoral behaviour threatens the existence
of the state” (p. 87). The Kroeze IJ summarises: “The problem is that laws can be correctly
made but still be evil. For the natural law thinkers this is simple such laws are not laws. The
legal positivists realise these laws are still laws but must be opposed on other grounds” (p. 85).
Mandela’s statement directly engages this problem: apartheid statutes were “correctly made”
yet morally “immoral, unjust, and intolerable.”
The African Debate and Ubuntu
The African debate reframes the issue: “Which of the two approaches is more appropriate and
applicable in the African context?” (p. 87).
Okafor argued that African ontology aligns naturally with natural law, since African legal
traditions tie law closely to moral custom — “in accord with the African legal phenomenon” (p.
89). Taiwo, however, rejected both natural law and positivism, claiming there is no single
“African” moral view (p. 89). Later philosophers like Nwakeze proposed that a shared African
culture could form a kind of “African natural law” (p. 91). These debates resonate with the
concept of ubuntu, defined as “humanity, humaneness, morality and compassion” (p. 153–
155). Ubuntu stresses communal harmony, reciprocity and moral duty and values that blur the
distinction between moral and legal obligation (p. 155–161). It embodies what the Constitutional
Court later called “the spirit of ubuntu… suffusing the whole constitutional order” (p. 161).
Mandela’s appeal to “conscience” thus echoes both universal natural law and African moral
philosophy: law loses legitimacy when it violates human dignity and communal morality.
Mandela’s Statement in Jurisprudential Context
Mandela’s words are unmistakably natural-law oriented. He asserts that when law and
conscience conflict, conscience must prevail. His argument presupposes an objective moral
standard by which apartheid laws can be judged “immoral, unjust, and intolerable.” In this
sense, Mandela’s philosophy anticipates civil disobedience grounded in moral legitimacy and
an act of fidelity to a higher law. The Kroeze IJ explicitly links Mandela’s quote to natural law
thinking (check p. 67). It even directs students to “regard this statement as an example of
natural law” and to consult his Rivonia statement for further context, thereby acknowledging
Mandela as a moral critic of positivist legality.
Yet, Mandela’s reasoning also reflects ubuntu’s relational morality: resistance to unjust law is
not individual anarchy but a moral duty toward one’s community. His conscience is not private
sentiment; it is the voice of the oppressed collective, asserting that dignity and justice are prior
to law. Mandela’s moralism provides law with ethical intelligibility where legality itself
becomes oppressive. It exemplifies the natural-law conviction that unjust laws are not true laws.
The Kroeze IJ notes that apartheid’s positivist judiciary often upheld statutes mechanically,
seeing their role as “purely mechanical or phonographic” (p. 94). Mandela’s stance directly
contests this positivist formalism.
However, the positivist caution remains pertinent: if every citizen disobeys the law on grounds of
conscience, order collapses. Hart’s warning that separating law from morality is necessary to
preserve clarity and has practical merit (p. 81). Mandela’s own acceptance of punishment
demonstrates awareness of this paradox: conscience may require disobedience, but law’s
authority is still acknowledged. Thus, Mandela does not reject law per se; he rejects law
divorced from moral purpose. His jurisprudence therefore bridges natural law’s moral
, legitimacy and positivism’s procedural validity (a synthesis that later informed South Africa’s
transformative constitutionalism).
5. Conclusion
Mandela’s 1962 pronouncement is best understood as a natural law assertion articulated
through African humanism. In philosophical terms, it situates him within the tradition that
measures law against morality; in political terms, it sanctifies civil disobedience as fidelity to
justice. The Kroeze IJ ’s examination of natural law, positivism, and ubuntu provides the
conceptual foundation for this interpretation: law, stripped of morality, becomes mere command;
morality, without law, becomes impotent. Mandela’s insight restores the unity of both, reminding
us that the highest calling of jurisprudence is not obedience but justice
Legal philosophy draft 2025 semester 2
November portfolio memorandum
Documents are provided in the annexure
,Question 1
1. Introduction
In his 1962 courtroom address, Nelson Mandela declared:
“The whole life of any thinking African in this country drives him continuously to a conflict
between his conscience on the one hand and the law on the other.” This pronouncement, made
in the context of apartheid’s racialised legality, articulates one of jurisprudence’s most persistent
problems: the relationship between law and morality. Mandela’s words can be situated within
the philosophical debate between natural law and legal positivism, as well as in the African
moral tradition of ubuntu.
Definition of debate
The Kroeze IJ defines the debate as one that asks whether the law should enforce moral
convictions or whether the validity of law depends on its moral content (p. 61–63). Natural law
theorists assert that unjust laws lack true validity, while positivists maintain that a law remains
law so long as it is properly enacted, regardless of its moral content (p. 61). This is expressed
succinctly: “The validity of the law is therefore dependent on its moral content… We call this
kind of thinking natural law. The second group rejects this idea… We call this kind of thinking
legal positivism.” (p. 61).
Natural Law Theory
Natural law holds that there exists an eternal and universal ideal of justice which is a “yardstick
by which human law can be judged” (p. 63). From Plato and Aristotle through Aquinas to
modern theorists like Finnis, natural law asserts that reason discerns immutable moral truths
that precede positive enactments (p. 65–75). The Kroeze IJ emphasizes that for natural law
thinkers, “All positive (human) law… must meet the requirements of natural law” (p. 65).
Mandela’s invocation of conscience as a moral compass mirrors this natural-law conviction:
when state law contradicts moral law, the latter must prevail.
Legal Positivism
By contrast, legal positivism rejects the metaphysical foundations of natural law. It is described
as an English invention rooted in Enlightenment empiricism (p. 77–79). Positivists “separate
facts and values” and insist that “the validity of a duly enacted law can never depend on its
moral content” (p. 81). For H.L.A. Hart, a law may be “morally iniquitous” yet remain valid law (p.
81). Positivism thus defines law as a social fact, not a moral order. The Kroeze IJ notes that
“legal positivism makes it possible to criticise the law” precisely because it distinguishes
between what is law and what ought to be (p. 83). This view, however, risks moral detachment,
which Mandela denounced in apartheid’s moral vacuum.
The Hart–Devlin Debate
The positivist-natural law divide is epitomised in the Hart–Devlin debate (p. 85–87). Hart
argued that law and morality are conceptually distinct: morally bad laws are still laws, though
they should be opposed politically. Devlin countered that law must enforce shared moral
,standards to preserve social cohesion, claiming that “immoral behaviour threatens the existence
of the state” (p. 87). The Kroeze IJ summarises: “The problem is that laws can be correctly
made but still be evil. For the natural law thinkers this is simple such laws are not laws. The
legal positivists realise these laws are still laws but must be opposed on other grounds” (p. 85).
Mandela’s statement directly engages this problem: apartheid statutes were “correctly made”
yet morally “immoral, unjust, and intolerable.”
The African Debate and Ubuntu
The African debate reframes the issue: “Which of the two approaches is more appropriate and
applicable in the African context?” (p. 87).
Okafor argued that African ontology aligns naturally with natural law, since African legal
traditions tie law closely to moral custom — “in accord with the African legal phenomenon” (p.
89). Taiwo, however, rejected both natural law and positivism, claiming there is no single
“African” moral view (p. 89). Later philosophers like Nwakeze proposed that a shared African
culture could form a kind of “African natural law” (p. 91). These debates resonate with the
concept of ubuntu, defined as “humanity, humaneness, morality and compassion” (p. 153–
155). Ubuntu stresses communal harmony, reciprocity and moral duty and values that blur the
distinction between moral and legal obligation (p. 155–161). It embodies what the Constitutional
Court later called “the spirit of ubuntu… suffusing the whole constitutional order” (p. 161).
Mandela’s appeal to “conscience” thus echoes both universal natural law and African moral
philosophy: law loses legitimacy when it violates human dignity and communal morality.
Mandela’s Statement in Jurisprudential Context
Mandela’s words are unmistakably natural-law oriented. He asserts that when law and
conscience conflict, conscience must prevail. His argument presupposes an objective moral
standard by which apartheid laws can be judged “immoral, unjust, and intolerable.” In this
sense, Mandela’s philosophy anticipates civil disobedience grounded in moral legitimacy and
an act of fidelity to a higher law. The Kroeze IJ explicitly links Mandela’s quote to natural law
thinking (check p. 67). It even directs students to “regard this statement as an example of
natural law” and to consult his Rivonia statement for further context, thereby acknowledging
Mandela as a moral critic of positivist legality.
Yet, Mandela’s reasoning also reflects ubuntu’s relational morality: resistance to unjust law is
not individual anarchy but a moral duty toward one’s community. His conscience is not private
sentiment; it is the voice of the oppressed collective, asserting that dignity and justice are prior
to law. Mandela’s moralism provides law with ethical intelligibility where legality itself
becomes oppressive. It exemplifies the natural-law conviction that unjust laws are not true laws.
The Kroeze IJ notes that apartheid’s positivist judiciary often upheld statutes mechanically,
seeing their role as “purely mechanical or phonographic” (p. 94). Mandela’s stance directly
contests this positivist formalism.
However, the positivist caution remains pertinent: if every citizen disobeys the law on grounds of
conscience, order collapses. Hart’s warning that separating law from morality is necessary to
preserve clarity and has practical merit (p. 81). Mandela’s own acceptance of punishment
demonstrates awareness of this paradox: conscience may require disobedience, but law’s
authority is still acknowledged. Thus, Mandela does not reject law per se; he rejects law
divorced from moral purpose. His jurisprudence therefore bridges natural law’s moral
, legitimacy and positivism’s procedural validity (a synthesis that later informed South Africa’s
transformative constitutionalism).
5. Conclusion
Mandela’s 1962 pronouncement is best understood as a natural law assertion articulated
through African humanism. In philosophical terms, it situates him within the tradition that
measures law against morality; in political terms, it sanctifies civil disobedience as fidelity to
justice. The Kroeze IJ ’s examination of natural law, positivism, and ubuntu provides the
conceptual foundation for this interpretation: law, stripped of morality, becomes mere command;
morality, without law, becomes impotent. Mandela’s insight restores the unity of both, reminding
us that the highest calling of jurisprudence is not obedience but justice
