Question 1.1
The scenario presented outlines a legal issue namely, the criminalisation of
prostitution in South Africa under the Sexual Offences Act 23 of 1957 and reveals
two competing philosophical approaches. These are: (1) legal moralism, which
supports criminalisation on the basis of the immorality of the act, and (2) legal
positivism, which suggests that the law is valid independent of its moral content.
Both perspectives engage deeply with broader jurisprudential debates concerning
the nature, function, and justification of law.
The argument that prostitution is criminalised because it is immoral finds its roots in
legal moralism, a philosophy that argues law can and should enforce societal morals.
Legal moralism is often associated with natural law theory, a school of thought which
maintains that law and morality are inseparable. According to classical natural law
thinkers such as St Thomas Aquinas, human-made laws must conform to a higher
moral order; laws that contradict morality are unjust and lack the true authority of
law.1In this view, legal norms derive their legitimacy from their moral righteousness.
This is particularly relevant to the history of the Sexual Offences Act 23 of 1957,
which was enacted during a time when the South African state took an overtly
moralistic stance towards personal conduct, often through a religious or socially
conservative lens.2The Act prohibits prostitution not necessarily because of its harm,
but arguably because it offends a certain conception of decency. In this sense, it
reflects the natural law assumption that morality is a valid basis for legal sanction.
From a legal moralist viewpoint, criminalising prostitution is justified by the belief that
such conduct is inherently degrading or harmful to societal moral standards, even if it
involves consenting adults and causes no direct harm to others. 3 The law here is not
merely a mechanism of order or administration, but a guardian of public virtue.
The second view represented in the scenario is that the law has nothing to do with
the morality or immorality of the prohibited conduct. This reflects the approach of
legal positivism, most notably developed by H.L.A. Hart. According to legal
1
Irma J Kroeze, Legal Philosophy Study Guide (University of South Africa 2017) 29.
2
Irma J Kroeze, Legal Philosophy Study Guide (University of South Africa 2017) 30.
3
Irma J Kroeze, Legal Philosophy Study Guide (University of South Africa 2017) 31.
, positivism, the validity of law is a question of its source not its moral content. As Hart
argued, laws are valid if they originate from recognised authority and comply with the
rules of the legal system. 4 This is known as the "separation thesis" the idea that law
and morality are conceptually distinct.
Positivists argue that judges and legal practitioners must apply the law as it stands,
regardless of personal moral views. For instance, a positivist judge would uphold the
criminalisation of prostitution simply because it has been enacted by Parliament and
remains valid, not because it is deemed morally right or wrong. The legal system,
under this view, must be neutral regarding morality to maintain predictability and
coherence.5
Hart introduced the concept of the "rule of recognition", a social rule that defines
what is accepted as valid law in a given legal system. The criminalisation of
prostitution, having been enacted by a valid legislative body and not yet repealed or
struck down by a court, satisfies the rule of recognition in South African law. 6positivist
theorist Joseph Raz further refined this stance by asserting that law provides
authoritative reasons for action, which override personal moral considerations. 7 In
other words, the law demands obedience not because it is morally right, but because
it is legally binding.
The coexistence of these two views reflects broader tensions in South African
jurisprudence, especially in areas of law where moral controversy is pronounced. On
one hand, the legal framework retains legislation rooted in conservative moral
values, such as the Sexual Offences Act. On the other, post-apartheid
constitutionalism, with its emphasis on rights and dignity, pushes for a more neutral
and value-based interpretation of law that often critiques legal moralism.
Ultimately, these two philosophical traditions, legal moralism and legal positivism
continue to influence legislative and judicial approaches to issues like prostitution.
The former demands that law promote societal virtue, while the latter insists that law
should remain autonomous and immune from fluctuating moral standards.
Question 1.2
4
HLA Hart, The Concept of Law (2nd edn, Oxford University Press 1994) 181.
5
HLA Hart, The Concept of Law (2nd edn, Oxford University Press 1994) 185.
6
HLA Hart, The Concept of Law (2nd edn, Oxford University Press 1994) 100.
7
Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press
1979) 47.
The scenario presented outlines a legal issue namely, the criminalisation of
prostitution in South Africa under the Sexual Offences Act 23 of 1957 and reveals
two competing philosophical approaches. These are: (1) legal moralism, which
supports criminalisation on the basis of the immorality of the act, and (2) legal
positivism, which suggests that the law is valid independent of its moral content.
Both perspectives engage deeply with broader jurisprudential debates concerning
the nature, function, and justification of law.
The argument that prostitution is criminalised because it is immoral finds its roots in
legal moralism, a philosophy that argues law can and should enforce societal morals.
Legal moralism is often associated with natural law theory, a school of thought which
maintains that law and morality are inseparable. According to classical natural law
thinkers such as St Thomas Aquinas, human-made laws must conform to a higher
moral order; laws that contradict morality are unjust and lack the true authority of
law.1In this view, legal norms derive their legitimacy from their moral righteousness.
This is particularly relevant to the history of the Sexual Offences Act 23 of 1957,
which was enacted during a time when the South African state took an overtly
moralistic stance towards personal conduct, often through a religious or socially
conservative lens.2The Act prohibits prostitution not necessarily because of its harm,
but arguably because it offends a certain conception of decency. In this sense, it
reflects the natural law assumption that morality is a valid basis for legal sanction.
From a legal moralist viewpoint, criminalising prostitution is justified by the belief that
such conduct is inherently degrading or harmful to societal moral standards, even if it
involves consenting adults and causes no direct harm to others. 3 The law here is not
merely a mechanism of order or administration, but a guardian of public virtue.
The second view represented in the scenario is that the law has nothing to do with
the morality or immorality of the prohibited conduct. This reflects the approach of
legal positivism, most notably developed by H.L.A. Hart. According to legal
1
Irma J Kroeze, Legal Philosophy Study Guide (University of South Africa 2017) 29.
2
Irma J Kroeze, Legal Philosophy Study Guide (University of South Africa 2017) 30.
3
Irma J Kroeze, Legal Philosophy Study Guide (University of South Africa 2017) 31.
, positivism, the validity of law is a question of its source not its moral content. As Hart
argued, laws are valid if they originate from recognised authority and comply with the
rules of the legal system. 4 This is known as the "separation thesis" the idea that law
and morality are conceptually distinct.
Positivists argue that judges and legal practitioners must apply the law as it stands,
regardless of personal moral views. For instance, a positivist judge would uphold the
criminalisation of prostitution simply because it has been enacted by Parliament and
remains valid, not because it is deemed morally right or wrong. The legal system,
under this view, must be neutral regarding morality to maintain predictability and
coherence.5
Hart introduced the concept of the "rule of recognition", a social rule that defines
what is accepted as valid law in a given legal system. The criminalisation of
prostitution, having been enacted by a valid legislative body and not yet repealed or
struck down by a court, satisfies the rule of recognition in South African law. 6positivist
theorist Joseph Raz further refined this stance by asserting that law provides
authoritative reasons for action, which override personal moral considerations. 7 In
other words, the law demands obedience not because it is morally right, but because
it is legally binding.
The coexistence of these two views reflects broader tensions in South African
jurisprudence, especially in areas of law where moral controversy is pronounced. On
one hand, the legal framework retains legislation rooted in conservative moral
values, such as the Sexual Offences Act. On the other, post-apartheid
constitutionalism, with its emphasis on rights and dignity, pushes for a more neutral
and value-based interpretation of law that often critiques legal moralism.
Ultimately, these two philosophical traditions, legal moralism and legal positivism
continue to influence legislative and judicial approaches to issues like prostitution.
The former demands that law promote societal virtue, while the latter insists that law
should remain autonomous and immune from fluctuating moral standards.
Question 1.2
4
HLA Hart, The Concept of Law (2nd edn, Oxford University Press 1994) 181.
5
HLA Hart, The Concept of Law (2nd edn, Oxford University Press 1994) 185.
6
HLA Hart, The Concept of Law (2nd edn, Oxford University Press 1994) 100.
7
Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press
1979) 47.
