LJU4801
EXAM PACK
,Question 1.1 – The Relationship Between Law and Morality
To engage meaningfully with the connection between law and morality, it is essential
first to understand how competing perspectives on the subject were shaped. Legal
positivists insist that law should be studied and applied as it is, with every rule capable
of being linked back to a clear and verifiable source of authority. This reasoning largely
stems from the work of H.L.A. Hart, a leading figure in legal positivism. Hart’s theory
made it possible to distinguish the invalidity of a legal rule from its immorality, thereby
affirming that a law could still be valid even if it appeared morally flawed (Hart, 1994).
He further argued that while law and morality may operate closely, they are not
inherently connected.
Legal positivists therefore reject the notion that law exists independently of human
agency. For them, there is no necessary link between morality and legal systems.
Instead, law should rest firmly on legal enactments, procedures, and judicial decisions.
Since morality is shaped by personal beliefs and social traditions, it is considered
subjective, and for this reason, it should not determine whether a rule is legally valid. In
contrast, the law should strive to maintain objectivity. From this perspective, positivism
highlights the role of the state in creating and enforcing legal norms, while insisting that
legitimacy comes from the legal source itself rather than from its moral content
(Brandeis University, 2023).
At the heart of positivism lies the principle of separability, which emphasizes that law
and morality must remain distinct. The validity of a legal rule depends not on whether it
is morally good, but on whether it meets the formal criteria and procedures set down for
its creation. This approach defines law as a human construct that gains legitimacy from
the authority of the state and the social context in which it is applied.
By contrast, natural law theory stresses that universal moral principles exist outside of
human authority and should serve as the foundation of legal systems. Advocates of this
tradition believe that morality must influence law. John Finnis, for example, argues that
while morality should not be the sole determinant in legal decisions, it should
,nonetheless guide them, particularly in shaping law reform (Tan, 2003). This suggests
that natural law is primarily relevant in examining how and to what extent moral values
are incorporated into law.
Natural law theorists claim that morality provides an invisible yet universal thread that
governs human behavior, and this moral thread must be reflected in legal systems
(Dahraj, 2023). Supporting this view, the UNISA study guide explains that reality
consists of two parts: one eternal and universal, and the other changing and local. The
universal part embodies natural law, rooted in customs and long-standing practices that
societies have observed throughout history.
Central to natural law is the belief that moral principles exist independently of human-
made laws. Since the aim of law is to protect human dignity and advance justice,
morality must be embedded within legal norms to preserve their legitimacy. Natural law
scholars therefore criticize positivism for focusing narrowly on the mechanics of law-
making while neglecting the moral foundations that first gave rise to law (Dahraj, 2023).
Some natural law proponents go further, arguing that whenever human-made laws
conflict with natural law, natural law should prevail. This is reflected in Aquinas’
philosophy of pursuing good, avoiding evil, and advancing the common good (Star,
1984). According to this view, a rule can only be called a “law” if it is capable of moral
justification.
In summary, natural law thinkers argue that legal rules should be rooted in moral
principles and cultural traditions, whereas positivists maintain that law must remain
independent of morality. This demonstrates the ongoing tension between what is
morally desirable and what is legally valid (Brandeis University, 2023).
Question 1.2 – Morality and Constitutional Protection of Sexual Orientation
The fact that a practice is regarded as immoral by some does not automatically render it
illegal. This principle is demonstrated in the South African Constitution, which explicitly
, protects individuals against discrimination on the basis of sexual orientation (Republic of
South Africa, 1996). Such protection acknowledges the historical injustices suffered by
members of the LGBTQ+ community. Although moral views may vary, constitutional
safeguards ensure that legal rights are upheld regardless of prevailing moral objections.
A historical example of discrimination against same-sex relationships can be found in
the 1966 amendments to the Immorality Act, which introduced the infamous “three men
at a party” clause. This provision criminalized acts between men that could lead to
sexual arousal or gratification if more than two people were present at the gathering.
The law was repealed in 1985, highlighting the evolving legal approach to same-sex
relationships (Constitutional Court of South Africa, 2023).
Legal positivism provides a useful lens for examining this issue. As already noted,
positivists hold that law and morality must remain separate, and that the legitimacy of
law depends on its source rather than its content. In line with this approach, South
Africa became one of the first countries to enshrine protection for gay and lesbian
citizens in its Constitution. This legal step sought to correct systemic disadvantages
faced by these groups, a phenomenon described as “vertical discrimination” where
discrimination originates from the state toward its citizens (Constitutional Court of South
Africa, 2023).
Section 9 of the Constitution prohibits unfair discrimination on grounds such as race,
gender, sex, pregnancy, and sexual orientation, and guarantees equal enjoyment of all
rights and freedoms (Republic of South Africa, 1996). In 2006, the Cabinet passed the
Civil Union Bill, allowing same-sex couples to marry. This milestone reflected the state’s
commitment to equality and marked a key moment in granting legal recognition to
same-sex relationships.
When read together, Section 9 of the Constitution and the Civil Union Act establish a
legal framework that ensures equal rights irrespective of sexual orientation. In this
sense, South Africa’s stance is based on legal principles rather than on moral debates.
Pierre de Vos (2006) notes that the inclusion of sexual orientation in the Constitution
EXAM PACK
,Question 1.1 – The Relationship Between Law and Morality
To engage meaningfully with the connection between law and morality, it is essential
first to understand how competing perspectives on the subject were shaped. Legal
positivists insist that law should be studied and applied as it is, with every rule capable
of being linked back to a clear and verifiable source of authority. This reasoning largely
stems from the work of H.L.A. Hart, a leading figure in legal positivism. Hart’s theory
made it possible to distinguish the invalidity of a legal rule from its immorality, thereby
affirming that a law could still be valid even if it appeared morally flawed (Hart, 1994).
He further argued that while law and morality may operate closely, they are not
inherently connected.
Legal positivists therefore reject the notion that law exists independently of human
agency. For them, there is no necessary link between morality and legal systems.
Instead, law should rest firmly on legal enactments, procedures, and judicial decisions.
Since morality is shaped by personal beliefs and social traditions, it is considered
subjective, and for this reason, it should not determine whether a rule is legally valid. In
contrast, the law should strive to maintain objectivity. From this perspective, positivism
highlights the role of the state in creating and enforcing legal norms, while insisting that
legitimacy comes from the legal source itself rather than from its moral content
(Brandeis University, 2023).
At the heart of positivism lies the principle of separability, which emphasizes that law
and morality must remain distinct. The validity of a legal rule depends not on whether it
is morally good, but on whether it meets the formal criteria and procedures set down for
its creation. This approach defines law as a human construct that gains legitimacy from
the authority of the state and the social context in which it is applied.
By contrast, natural law theory stresses that universal moral principles exist outside of
human authority and should serve as the foundation of legal systems. Advocates of this
tradition believe that morality must influence law. John Finnis, for example, argues that
while morality should not be the sole determinant in legal decisions, it should
,nonetheless guide them, particularly in shaping law reform (Tan, 2003). This suggests
that natural law is primarily relevant in examining how and to what extent moral values
are incorporated into law.
Natural law theorists claim that morality provides an invisible yet universal thread that
governs human behavior, and this moral thread must be reflected in legal systems
(Dahraj, 2023). Supporting this view, the UNISA study guide explains that reality
consists of two parts: one eternal and universal, and the other changing and local. The
universal part embodies natural law, rooted in customs and long-standing practices that
societies have observed throughout history.
Central to natural law is the belief that moral principles exist independently of human-
made laws. Since the aim of law is to protect human dignity and advance justice,
morality must be embedded within legal norms to preserve their legitimacy. Natural law
scholars therefore criticize positivism for focusing narrowly on the mechanics of law-
making while neglecting the moral foundations that first gave rise to law (Dahraj, 2023).
Some natural law proponents go further, arguing that whenever human-made laws
conflict with natural law, natural law should prevail. This is reflected in Aquinas’
philosophy of pursuing good, avoiding evil, and advancing the common good (Star,
1984). According to this view, a rule can only be called a “law” if it is capable of moral
justification.
In summary, natural law thinkers argue that legal rules should be rooted in moral
principles and cultural traditions, whereas positivists maintain that law must remain
independent of morality. This demonstrates the ongoing tension between what is
morally desirable and what is legally valid (Brandeis University, 2023).
Question 1.2 – Morality and Constitutional Protection of Sexual Orientation
The fact that a practice is regarded as immoral by some does not automatically render it
illegal. This principle is demonstrated in the South African Constitution, which explicitly
, protects individuals against discrimination on the basis of sexual orientation (Republic of
South Africa, 1996). Such protection acknowledges the historical injustices suffered by
members of the LGBTQ+ community. Although moral views may vary, constitutional
safeguards ensure that legal rights are upheld regardless of prevailing moral objections.
A historical example of discrimination against same-sex relationships can be found in
the 1966 amendments to the Immorality Act, which introduced the infamous “three men
at a party” clause. This provision criminalized acts between men that could lead to
sexual arousal or gratification if more than two people were present at the gathering.
The law was repealed in 1985, highlighting the evolving legal approach to same-sex
relationships (Constitutional Court of South Africa, 2023).
Legal positivism provides a useful lens for examining this issue. As already noted,
positivists hold that law and morality must remain separate, and that the legitimacy of
law depends on its source rather than its content. In line with this approach, South
Africa became one of the first countries to enshrine protection for gay and lesbian
citizens in its Constitution. This legal step sought to correct systemic disadvantages
faced by these groups, a phenomenon described as “vertical discrimination” where
discrimination originates from the state toward its citizens (Constitutional Court of South
Africa, 2023).
Section 9 of the Constitution prohibits unfair discrimination on grounds such as race,
gender, sex, pregnancy, and sexual orientation, and guarantees equal enjoyment of all
rights and freedoms (Republic of South Africa, 1996). In 2006, the Cabinet passed the
Civil Union Bill, allowing same-sex couples to marry. This milestone reflected the state’s
commitment to equality and marked a key moment in granting legal recognition to
same-sex relationships.
When read together, Section 9 of the Constitution and the Civil Union Act establish a
legal framework that ensures equal rights irrespective of sexual orientation. In this
sense, South Africa’s stance is based on legal principles rather than on moral debates.
Pierre de Vos (2006) notes that the inclusion of sexual orientation in the Constitution
