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LJU4801
EXAM PACK
DISTINCTION QUALITY
UNISA EXAM
,LJU4801 Portfolio Exam (October/November 2025) MEMO
DUE 30 OCTOBER 2025
ANSWER ALL FIVE (5) QUESTIONS
QUESTION 1
Carefully consider the following pronouncement made by Nelson Mandela during
his first court statement in Pretoria, 1962:
The law–morality debate in jurisprudence centers on whether law is inherently
connected to moral values or whether law is an autonomous system of rules. Legal
positivism (Austin, Hart, Raz) insists on a separation thesis: law’s validity depends
solely on social facts e.g. parliamentary enactment or judicial precedent), not on moral
content. As H.L.A. Hart summarized, positivists hold that “so long as [an] unjust law is a
valid law, one has a legal obligation to obey it”. Bentham and Austin likewise warned
against confusing “what is” (law) with “what ought to be”; they saw morality as outside
the legal “command.”
In contrast, natural-law theorists (Aquinas, Augustine, Finnis, Radbruch) maintain a
necessary connection: an unjust law is not fully law. Augustine famously declared “Nam
mihi lex esse non videtur, quae justa non fuerit” “an unjust law is not actually a law”.
Under this view, extreme injustice vitiates legal validity. For example, postwar scholar
Gustav Radbruch argued that laws “substantively unjust to an intolerable degree” lose
validity and should yield to justice. Between these poles are hybrid accounts: Hart
(though a positivist) acknowledged that deep moral questions arise in hard cases, and
,Ronald Dworkin argued that law inherently contains moral principles (e.g. rights) that
judges must respect.
Nelson Mandela’s 1962 court statement exemplifies this debate. Mandela explicitly
defied apartheid statutes on moral grounds. In his address he insisted “I am not the first
nor the last to break the law for moral reasons”, explaining that the laws he violated “do
not serve the majority of South Africans” and “inculcate hostility” among people. He
placed his conscience above positive law, echoing the natural-law maxim (as in
Augustine) that legally promulgated rules lose force when fundamentally unjust. Rather
than showing “respect for legality,” Mandela argued he was obliged by duty to the
people and to equality to oppose immoral laws.
This stance aligns with Radbruch’s doctrine: one must refuse to obey laws that
perpetuate gross injustice. In terms of jurisprudence, Mandela’s position rejects the
strict positivist view of legal obligation; it affirms that legitimacy rests on justice. Under
positivism, Mandela would have been legally bound to obey apartheid laws regardless
of their content, but his statement resonates with natural-law and critical jurisprudence
theories that the rule of law must embody moral values.
Mandela’s statement situates him on the natural-law side of the debate, affirming that
law and morality are intimately linked, so that law cannot command what virtue forbids
or ignore fundamental rights. His example parallels civil-disobedience theory (King,
Thoreau) and underscores the persistent jurisprudential tension: whether unjust laws
oblige obedience or invite moral refusal.
, Question 2(a): Dworkin’s Approach to a Novel Bullying Case (5 marks)
Ronald Dworkin’s theory treats law as an interpretive enterprise grounded in principles,
not just rules. Faced with a novel online bullying case with no clear statute, a
Dworkinian judge would proceed by searching for the best-fitting principle within the
legal “seamless web”. Dworkin famously holds that in “hard cases” there is “one right
answer” discoverable through interpretation.
The judge (the mythical “Herculean” judge) reviews existing law and rights, asking how
to extend them coherently and justly to the new context. For example, the judge might
analogize online bullying to harassment or defamation, emphasizing constitutional or
common-law principles of human dignity and equality. Dworkin insists judges are
“constrained to act in accordance with legal principle, and [not] free to use discretion”.
Thus, rather than creating law ex nihilo, the judge would appeal to entrenched values
(e.g. the right to security, freedom from hate speech) and analogous precedents to find
a principled outcome.
Under Dworkin the judge does not merely cite policy or analogies mechanically; she
interprets the law so as to fit social practices and moral ideals into a coherent whole.
The result in the bullying case would be determined by the best justification of all legal
materials: the judge would seek to honor any implicit rights against abuse, ensuring the
outcome is the morally and legally “right” one, even if unwritten.
LJU4801
EXAM PACK
DISTINCTION QUALITY
UNISA EXAM
,LJU4801 Portfolio Exam (October/November 2025) MEMO
DUE 30 OCTOBER 2025
ANSWER ALL FIVE (5) QUESTIONS
QUESTION 1
Carefully consider the following pronouncement made by Nelson Mandela during
his first court statement in Pretoria, 1962:
The law–morality debate in jurisprudence centers on whether law is inherently
connected to moral values or whether law is an autonomous system of rules. Legal
positivism (Austin, Hart, Raz) insists on a separation thesis: law’s validity depends
solely on social facts e.g. parliamentary enactment or judicial precedent), not on moral
content. As H.L.A. Hart summarized, positivists hold that “so long as [an] unjust law is a
valid law, one has a legal obligation to obey it”. Bentham and Austin likewise warned
against confusing “what is” (law) with “what ought to be”; they saw morality as outside
the legal “command.”
In contrast, natural-law theorists (Aquinas, Augustine, Finnis, Radbruch) maintain a
necessary connection: an unjust law is not fully law. Augustine famously declared “Nam
mihi lex esse non videtur, quae justa non fuerit” “an unjust law is not actually a law”.
Under this view, extreme injustice vitiates legal validity. For example, postwar scholar
Gustav Radbruch argued that laws “substantively unjust to an intolerable degree” lose
validity and should yield to justice. Between these poles are hybrid accounts: Hart
(though a positivist) acknowledged that deep moral questions arise in hard cases, and
,Ronald Dworkin argued that law inherently contains moral principles (e.g. rights) that
judges must respect.
Nelson Mandela’s 1962 court statement exemplifies this debate. Mandela explicitly
defied apartheid statutes on moral grounds. In his address he insisted “I am not the first
nor the last to break the law for moral reasons”, explaining that the laws he violated “do
not serve the majority of South Africans” and “inculcate hostility” among people. He
placed his conscience above positive law, echoing the natural-law maxim (as in
Augustine) that legally promulgated rules lose force when fundamentally unjust. Rather
than showing “respect for legality,” Mandela argued he was obliged by duty to the
people and to equality to oppose immoral laws.
This stance aligns with Radbruch’s doctrine: one must refuse to obey laws that
perpetuate gross injustice. In terms of jurisprudence, Mandela’s position rejects the
strict positivist view of legal obligation; it affirms that legitimacy rests on justice. Under
positivism, Mandela would have been legally bound to obey apartheid laws regardless
of their content, but his statement resonates with natural-law and critical jurisprudence
theories that the rule of law must embody moral values.
Mandela’s statement situates him on the natural-law side of the debate, affirming that
law and morality are intimately linked, so that law cannot command what virtue forbids
or ignore fundamental rights. His example parallels civil-disobedience theory (King,
Thoreau) and underscores the persistent jurisprudential tension: whether unjust laws
oblige obedience or invite moral refusal.
, Question 2(a): Dworkin’s Approach to a Novel Bullying Case (5 marks)
Ronald Dworkin’s theory treats law as an interpretive enterprise grounded in principles,
not just rules. Faced with a novel online bullying case with no clear statute, a
Dworkinian judge would proceed by searching for the best-fitting principle within the
legal “seamless web”. Dworkin famously holds that in “hard cases” there is “one right
answer” discoverable through interpretation.
The judge (the mythical “Herculean” judge) reviews existing law and rights, asking how
to extend them coherently and justly to the new context. For example, the judge might
analogize online bullying to harassment or defamation, emphasizing constitutional or
common-law principles of human dignity and equality. Dworkin insists judges are
“constrained to act in accordance with legal principle, and [not] free to use discretion”.
Thus, rather than creating law ex nihilo, the judge would appeal to entrenched values
(e.g. the right to security, freedom from hate speech) and analogous precedents to find
a principled outcome.
Under Dworkin the judge does not merely cite policy or analogies mechanically; she
interprets the law so as to fit social practices and moral ideals into a coherent whole.
The result in the bullying case would be determined by the best justification of all legal
materials: the judge would seek to honor any implicit rights against abuse, ensuring the
outcome is the morally and legally “right” one, even if unwritten.
