LJU4801 Legal Philosophy –Portfolio Exam
Questions and Answers (Semester 1 2026)
QUESTION 1
Critically discuss the relationship between law and morality with reference to legal positivism
and natural law theory.
ANSWER
The relationship between law and morality is one of the central debates in legal philosophy.
Legal positivism and natural law theory provide contrasting approaches to this issue.
,Legal positivism argues that law and morality are separate concepts. According to H.L.A. Hart,
the validity of law depends on social facts such as enactment by a recognised authority and not
on moral correctness. A law can therefore be legally valid even if it is unjust or immoral.
Positivists maintain that certainty and predictability in the legal system require a distinction
between what the law is and what the law ought to be.
Natural law theory, associated with Thomas Aquinas, argues that law and morality are inherently
connected. Natural law theorists believe that unjust laws are not true laws because law derives
authority from moral principles and justice. Human laws must therefore conform to universal
moral standards discoverable through reason.
The South African constitutional system reflects elements of both theories. The Constitution is
legally supreme, but constitutional values such as dignity, equality, and freedom introduce moral
considerations into legal interpretation. Courts often invalidate laws that violate constitutional
morality.
In conclusion, legal positivism emphasises legal certainty and separation from morality, while
natural law theory emphasises justice and moral legitimacy. Modern constitutional democracies
often combine aspects of both approaches.
QUESTION 2
Explain the concept of Ubuntu and its importance in South African jurisprudence.
ANSWER
Ubuntu is an African philosophical concept that emphasises human interconnectedness,
compassion, dignity, and community. The phrase “a person is a person through other persons”
captures the essence of Ubuntu.
In South African jurisprudence, Ubuntu plays an important role in constitutional interpretation
and restorative justice. Courts have recognised Ubuntu as a constitutional value promoting
reconciliation, fairness, and social harmony.
One of the leading cases involving Ubuntu is S v Makwanyane, where the Constitutional Court
abolished the death penalty partly because it violated human dignity and Ubuntu values.
Ubuntu differs from strict legal positivism because it integrates morality, community welfare,
and restorative justice into legal reasoning. Instead of focusing only on punishment, Ubuntu
encourages reconciliation and healing between offenders and victims.
Ubuntu also influences customary law and transformative constitutionalism in South Africa. It
supports the idea that law should promote social justice and collective well-being.
,Therefore, Ubuntu remains a significant foundation of South African legal philosophy because it
aligns law with constitutional values and African communal traditions.
QUESTION 3
Differentiate between legal realism and legal positivism.
ANSWER
Legal realism and legal positivism are different schools of jurisprudence with distinct views
about how law operates.
Legal positivism argues that law consists of rules created and recognised by legitimate authority.
Positivists focus on formal legal sources such as legislation, constitutions, and judicial
precedents. They believe judges apply legal rules objectively.
Legal realism, however, argues that judicial decisions are influenced by social, political,
economic, and personal factors. Legal realists believe that judges do not merely apply rules
mechanically but often exercise discretion.
Oliver Wendell Holmes Jr. famously stated that “the life of the law has not been logic; it has
been experience.” This reflects the realist belief that practical consequences and societal realities
shape judicial outcomes.
Legal realism also criticises the assumption that legal rules always produce predictable results.
Realists argue that the behaviour and values of judges significantly affect legal decisions.
In summary, legal positivism focuses on legal rules and formal authority, while legal realism
focuses on how law actually functions in practice and how judges make decisions.
QUESTION 4
Critically evaluate Dworkin’s criticism of Hart’s legal positivism.
ANSWER
Ronald Dworkin criticised Hart’s legal positivism by arguing that law includes not only rules but
also moral principles.
, Hart maintained that legal systems operate through primary and secondary rules recognised by
officials through a rule of recognition. According to Hart, legal validity depends on social
acceptance rather than morality.
Dworkin disagreed and argued that judges frequently rely on moral principles when deciding
difficult cases. He claimed that principles such as fairness, justice, and equality form part of the
law even when they are not formally enacted.
Dworkin introduced the idea of “law as integrity,” which requires judges to interpret law
consistently with moral principles underlying the legal system. He believed that legal reasoning
cannot be separated completely from morality.
The South African Constitution supports aspects of Dworkin’s theory because courts regularly
interpret legislation in light of constitutional values and human rights principles.
However, positivists argue that Dworkin’s approach reduces legal certainty because moral
principles may differ between judges.
Overall, Dworkin expanded jurisprudence by demonstrating the important role of moral
reasoning in constitutional adjudication and legal interpretation.
QUESTION 5
Discuss the main principles of natural law theory.
ANSWER
Natural law theory is based on the idea that law derives its authority from morality and reason.
According to natural law theorists, there are universal moral principles that apply to all human
beings regardless of enacted laws.
Thomas Aquinas argued that human laws must conform to higher moral laws derived from
reason and divine order. If a law is unjust, it loses moral legitimacy and may not deserve
obedience.
The key principles of natural law include:
• Law must promote the common good.
• Law should reflect morality and justice.
• Human beings possess inherent rights.
• Unjust laws are not true laws.
Questions and Answers (Semester 1 2026)
QUESTION 1
Critically discuss the relationship between law and morality with reference to legal positivism
and natural law theory.
ANSWER
The relationship between law and morality is one of the central debates in legal philosophy.
Legal positivism and natural law theory provide contrasting approaches to this issue.
,Legal positivism argues that law and morality are separate concepts. According to H.L.A. Hart,
the validity of law depends on social facts such as enactment by a recognised authority and not
on moral correctness. A law can therefore be legally valid even if it is unjust or immoral.
Positivists maintain that certainty and predictability in the legal system require a distinction
between what the law is and what the law ought to be.
Natural law theory, associated with Thomas Aquinas, argues that law and morality are inherently
connected. Natural law theorists believe that unjust laws are not true laws because law derives
authority from moral principles and justice. Human laws must therefore conform to universal
moral standards discoverable through reason.
The South African constitutional system reflects elements of both theories. The Constitution is
legally supreme, but constitutional values such as dignity, equality, and freedom introduce moral
considerations into legal interpretation. Courts often invalidate laws that violate constitutional
morality.
In conclusion, legal positivism emphasises legal certainty and separation from morality, while
natural law theory emphasises justice and moral legitimacy. Modern constitutional democracies
often combine aspects of both approaches.
QUESTION 2
Explain the concept of Ubuntu and its importance in South African jurisprudence.
ANSWER
Ubuntu is an African philosophical concept that emphasises human interconnectedness,
compassion, dignity, and community. The phrase “a person is a person through other persons”
captures the essence of Ubuntu.
In South African jurisprudence, Ubuntu plays an important role in constitutional interpretation
and restorative justice. Courts have recognised Ubuntu as a constitutional value promoting
reconciliation, fairness, and social harmony.
One of the leading cases involving Ubuntu is S v Makwanyane, where the Constitutional Court
abolished the death penalty partly because it violated human dignity and Ubuntu values.
Ubuntu differs from strict legal positivism because it integrates morality, community welfare,
and restorative justice into legal reasoning. Instead of focusing only on punishment, Ubuntu
encourages reconciliation and healing between offenders and victims.
Ubuntu also influences customary law and transformative constitutionalism in South Africa. It
supports the idea that law should promote social justice and collective well-being.
,Therefore, Ubuntu remains a significant foundation of South African legal philosophy because it
aligns law with constitutional values and African communal traditions.
QUESTION 3
Differentiate between legal realism and legal positivism.
ANSWER
Legal realism and legal positivism are different schools of jurisprudence with distinct views
about how law operates.
Legal positivism argues that law consists of rules created and recognised by legitimate authority.
Positivists focus on formal legal sources such as legislation, constitutions, and judicial
precedents. They believe judges apply legal rules objectively.
Legal realism, however, argues that judicial decisions are influenced by social, political,
economic, and personal factors. Legal realists believe that judges do not merely apply rules
mechanically but often exercise discretion.
Oliver Wendell Holmes Jr. famously stated that “the life of the law has not been logic; it has
been experience.” This reflects the realist belief that practical consequences and societal realities
shape judicial outcomes.
Legal realism also criticises the assumption that legal rules always produce predictable results.
Realists argue that the behaviour and values of judges significantly affect legal decisions.
In summary, legal positivism focuses on legal rules and formal authority, while legal realism
focuses on how law actually functions in practice and how judges make decisions.
QUESTION 4
Critically evaluate Dworkin’s criticism of Hart’s legal positivism.
ANSWER
Ronald Dworkin criticised Hart’s legal positivism by arguing that law includes not only rules but
also moral principles.
, Hart maintained that legal systems operate through primary and secondary rules recognised by
officials through a rule of recognition. According to Hart, legal validity depends on social
acceptance rather than morality.
Dworkin disagreed and argued that judges frequently rely on moral principles when deciding
difficult cases. He claimed that principles such as fairness, justice, and equality form part of the
law even when they are not formally enacted.
Dworkin introduced the idea of “law as integrity,” which requires judges to interpret law
consistently with moral principles underlying the legal system. He believed that legal reasoning
cannot be separated completely from morality.
The South African Constitution supports aspects of Dworkin’s theory because courts regularly
interpret legislation in light of constitutional values and human rights principles.
However, positivists argue that Dworkin’s approach reduces legal certainty because moral
principles may differ between judges.
Overall, Dworkin expanded jurisprudence by demonstrating the important role of moral
reasoning in constitutional adjudication and legal interpretation.
QUESTION 5
Discuss the main principles of natural law theory.
ANSWER
Natural law theory is based on the idea that law derives its authority from morality and reason.
According to natural law theorists, there are universal moral principles that apply to all human
beings regardless of enacted laws.
Thomas Aquinas argued that human laws must conform to higher moral laws derived from
reason and divine order. If a law is unjust, it loses moral legitimacy and may not deserve
obedience.
The key principles of natural law include:
• Law must promote the common good.
• Law should reflect morality and justice.
• Human beings possess inherent rights.
• Unjust laws are not true laws.
