LJU4801 LAW OF PHILOSOPHY MAY/JUNE
MEMORANDUM 2025
MEMORANDUM
BY
LLB WITH MUNYAI
Law of philosophy (LJU4801)
, QUESTION 1
Note that I will write more required words so that you
paraphrase well.
1.1 Kroeze IJ1 emphasized that they are two groups. The first group accepts that laws
must conform to moral rules and that, if a legal rule contravenes moral rules, the law
must be invalid. The validity of the law is therefore dependent on its moral content. We
call this kind of thinking natural law.2 The second group rejects this idea and argues
that a law is valid when made by a competent legislature according to established
procedures (due process). The validity of the law is therefore not dependent on its moral
content. We call this kind of thinking legal positivism.3 Both Plato and Aristotle
accepted the existence of a metaphysical world, but Plato called this Ideals and Aristotle
called it Forms. For Plato everything we can observe with our senses is nothing more
than a (bad) copy of the eternal Ideal, while the Ideals were permanent and
indestructible. Aristotle emphasized that nothing ever consists only of material
components. Everything that exists also has a purpose towards which it strives – in his
thinking that purpose is provided by the Forms. 4 Therefore, Plato regarded positive
(human) law as a weak and temporary copy of the eternal Ideal of Justice. This Ideal
provides the yardstick against which we measure human laws. Aristotle regards positive
laws as striving towards the ideal type of law according to the purpose provided by the
Forms.5 For Aristotle justice consisted of two parts – a natural part and a legal part and
he calls the first universal law and the second particular law. The natural (or universal
law) is “binding on all men” even if they have no agreement to that effect. Aristotle also
distinguished between distributive justice and corrective justice. Distributive justice
means that those who are equal should be treated equally and those who are not equal
should not be treated equally. Corrective justice is applied when an imbalance has
occurred in society through, for example, a crime or a delict. 6 The basic point of
departure of legal positivism is the rejection of metaphysics. You will remember that the
natural law thinkers saw natural law as a metaphysical reality. Well, legal positivists
regard this as mere speculation. For them, what matters are things that can be directly
observed and not some assumption that this set of rules exists. They base their ideas
on the given, factual and “positive” reality as this is the only thing that is relevant to
1
Kroeze IJ Legal philosophy: Only study guide for LJU4801 (Unisa Press Pretoria 2017).
2
Kroeze IJ Legal philosophy 61.
3
Kroeze IJ Legal philosophy 61.
4
Kroeze IJ Legal philosophy 65.
5
Kroeze IJ Legal philosophy 67.
6
Kroeze IJ Legal philosophy 67.
MEMORANDUM 2025
MEMORANDUM
BY
LLB WITH MUNYAI
Law of philosophy (LJU4801)
, QUESTION 1
Note that I will write more required words so that you
paraphrase well.
1.1 Kroeze IJ1 emphasized that they are two groups. The first group accepts that laws
must conform to moral rules and that, if a legal rule contravenes moral rules, the law
must be invalid. The validity of the law is therefore dependent on its moral content. We
call this kind of thinking natural law.2 The second group rejects this idea and argues
that a law is valid when made by a competent legislature according to established
procedures (due process). The validity of the law is therefore not dependent on its moral
content. We call this kind of thinking legal positivism.3 Both Plato and Aristotle
accepted the existence of a metaphysical world, but Plato called this Ideals and Aristotle
called it Forms. For Plato everything we can observe with our senses is nothing more
than a (bad) copy of the eternal Ideal, while the Ideals were permanent and
indestructible. Aristotle emphasized that nothing ever consists only of material
components. Everything that exists also has a purpose towards which it strives – in his
thinking that purpose is provided by the Forms. 4 Therefore, Plato regarded positive
(human) law as a weak and temporary copy of the eternal Ideal of Justice. This Ideal
provides the yardstick against which we measure human laws. Aristotle regards positive
laws as striving towards the ideal type of law according to the purpose provided by the
Forms.5 For Aristotle justice consisted of two parts – a natural part and a legal part and
he calls the first universal law and the second particular law. The natural (or universal
law) is “binding on all men” even if they have no agreement to that effect. Aristotle also
distinguished between distributive justice and corrective justice. Distributive justice
means that those who are equal should be treated equally and those who are not equal
should not be treated equally. Corrective justice is applied when an imbalance has
occurred in society through, for example, a crime or a delict. 6 The basic point of
departure of legal positivism is the rejection of metaphysics. You will remember that the
natural law thinkers saw natural law as a metaphysical reality. Well, legal positivists
regard this as mere speculation. For them, what matters are things that can be directly
observed and not some assumption that this set of rules exists. They base their ideas
on the given, factual and “positive” reality as this is the only thing that is relevant to
1
Kroeze IJ Legal philosophy: Only study guide for LJU4801 (Unisa Press Pretoria 2017).
2
Kroeze IJ Legal philosophy 61.
3
Kroeze IJ Legal philosophy 61.
4
Kroeze IJ Legal philosophy 65.
5
Kroeze IJ Legal philosophy 67.
6
Kroeze IJ Legal philosophy 67.
