LJU4801
EXAM PACK
, lOMoARcPSD|21997160
LJU4801 JAN / FEB SUPP EXAM 2024
Question 1
Read the following article and then answer the questions set out below:
In the newspaper article written by Nico De Jager titled “Pride is a heavy price to
pay”, the author talks about discrimination on the basis of sexual orientation.
According to this article: “At least 20 LGBTQIA+ [lesbian, gay, bisexual,
transgender, queer, intersex, asexual plus] individuals were brutally killed across
South Africa between February and October [2021] when the country witnessed
an increase in the number of attacks against lesbians, gays and transgender
people. Many of the victims were beaten or stabbed to death. Evidently, these
victims were targeted because of their sexual orientation and gender identity.”
The article further indicates that:
“As a society firmly entrenched in patriarchy and misogyny, many South Africans
still perceive LGBTQIA+ individuals as inherently immoral and/or “un-African”
and therefore pay little attention to the violence that they endure daily. This is
indicative of the work that needs to be done in changing societal attitudes in our
communities.”
1.1 Despite the rights of LGBTQI+ having constitutional and legislative protection,
members of this community are still victimised in South Africa, with some
critics (as noted above) viewing homosexuality as immoral. One of the
consistent debates in legal philosophy has been the relationship between law
and morality. Discuss how legal positivists and natural-law philosophers view
this relationship. Your answer should not exceed 1000 words. (20)
In the context of LGBTQI+ rights in South Africa, the relationship between law and
morality becomes particularly relevant. Despite constitutional and legislative protections
in place, members of the LGBTQI+ community continue to face victimization, with
certain critics still perceiving homosexuality as immoral. This raises a fundamental
, lOMoARcPSD|21997160
question in legal philosophy: How do legal positivists and natural-law philosophers
perceive the relationship between law and morality?
Legal positivism, as championed by figures like Hart, holds that the validity of laws is
independent of their moral content. According to legal positivists, laws are social rules
created and recognized by the legal system, and their legitimacy derives solely from
1
their formal enactment through recognized procedures. Thus, even if certain laws are
considered morally objectionable, they are still considered valid as long as they have
been lawfully enacted. From this perspective, the focus is on the source of law rather
than its content.
In the case of LGBTQI+ rights, legal positivism would argue that laws protecting the
rights of individuals regardless of their sexual orientation are valid if they have been
lawfully enacted and fall within the recognized legal framework. The moral or ethical
considerations surrounding homosexuality, according to legal positivists, are separate
from the question of legal validity.
On the other hand, natural-law philosophers propose a different view of the relationship
between law and morality. Natural-law thinkers argue that there is an inherent
connection between law and morality, and that laws should align with certain moral
principles or ideals. They contend that laws must conform to an objective moral
standard or natural law, which is derived from human reason or divine authority. Natural-
law philosophers believe that laws that violate these moral principles are not true laws
and should be opposed.2
In the context of LGBTQI+ rights, natural-law philosophers would assess the morality of
laws relating to homosexuality based on their alignment with their understanding of
natural law or objective moral principles. If laws protecting LGBTQI+ rights are seen as
conforming to these moral principles, they would be considered valid and 3just.
Conversely, if laws were viewed as contradicting these moral principles, natural-law
philosophers would argue for their opposition.
1 Unisa. 2023. LJU4801 Study Guide. University of South Africa.
2 Unisa. 2023. LJU4801 Study Guide. University of South Africa.
3 See section 1 of the Constitution of the Republic of South Africa, 1996.
, lOMoARcPSD|21997160
In South Africa, the Constitution guarantees equal rights and protection to all individuals,
including LGBTQI+ individuals, and prohibits discrimination based on sexual
orientation.4 This constitutional protection reflects a legal positivist approach, as it
emphasizes the formal recognition and enactment of laws that safeguard LGBTQI+
rights, regardless of moral perspectives.
However, the ongoing victimization and discrimination faced by the LGBTQI+
community highlight the limitations of legal positivism in achieving social and moral
justice. Critics who view homosexuality as immoral may continue to challenge the
validity of laws protecting LGBTQI+ rights, despite their lawful enactment.
In conclusion, legal positivism and natural-law philosophy offer distinct perspectives on
the relationship between law and morality. Legal positivists prioritize the formal validity
of laws, regardless of their moral content, while natural-law philosophers argue for the
alignment of laws with moral principles or natural law. In the case of LGBTQI+ rights in
South Africa, the constitutional and legislative protections reflect a legal positivist
approach. However, the ongoing challenges faced by the LGBTQI+ community
underscore the need for ongoing societal dialogue and advocacy to bridge the gap
between legal recognition and moral acceptance.
1.2 Section 9 of the Constitution of the Republic of South Africa, 1996 prohibits
discrimination on the basis of sexual orientation. Moreover, the Civil Union Act 17
of 2006 recognises same-sex marriages. Keeping in mind the positivist theory of
adjudication, is the South African position on homosexuality based on law or
morality? Discuss. Your answer should not exceed 750 words. (15)
The South African position on homosexuality, as reflected in Section 9 of the
Constitution and the Civil Union Act, can be considered primarily based on law rather
5
than morality when viewed through the lens of the positivist theory of adjudication.
Legal positivism emphasizes that the validity of law is determined by its source and
formal characteristics rather than its moral content or conformity to an external moral
standard. In this context, the South African legal system recognizes and protects the
4 See section 9(3) of the Constitution of the Republic of South Africa, 1996.
5 See the Civil Union Act 17 of 2006.
Downloaded by Thomas Mboya ()
EXAM PACK
, lOMoARcPSD|21997160
LJU4801 JAN / FEB SUPP EXAM 2024
Question 1
Read the following article and then answer the questions set out below:
In the newspaper article written by Nico De Jager titled “Pride is a heavy price to
pay”, the author talks about discrimination on the basis of sexual orientation.
According to this article: “At least 20 LGBTQIA+ [lesbian, gay, bisexual,
transgender, queer, intersex, asexual plus] individuals were brutally killed across
South Africa between February and October [2021] when the country witnessed
an increase in the number of attacks against lesbians, gays and transgender
people. Many of the victims were beaten or stabbed to death. Evidently, these
victims were targeted because of their sexual orientation and gender identity.”
The article further indicates that:
“As a society firmly entrenched in patriarchy and misogyny, many South Africans
still perceive LGBTQIA+ individuals as inherently immoral and/or “un-African”
and therefore pay little attention to the violence that they endure daily. This is
indicative of the work that needs to be done in changing societal attitudes in our
communities.”
1.1 Despite the rights of LGBTQI+ having constitutional and legislative protection,
members of this community are still victimised in South Africa, with some
critics (as noted above) viewing homosexuality as immoral. One of the
consistent debates in legal philosophy has been the relationship between law
and morality. Discuss how legal positivists and natural-law philosophers view
this relationship. Your answer should not exceed 1000 words. (20)
In the context of LGBTQI+ rights in South Africa, the relationship between law and
morality becomes particularly relevant. Despite constitutional and legislative protections
in place, members of the LGBTQI+ community continue to face victimization, with
certain critics still perceiving homosexuality as immoral. This raises a fundamental
, lOMoARcPSD|21997160
question in legal philosophy: How do legal positivists and natural-law philosophers
perceive the relationship between law and morality?
Legal positivism, as championed by figures like Hart, holds that the validity of laws is
independent of their moral content. According to legal positivists, laws are social rules
created and recognized by the legal system, and their legitimacy derives solely from
1
their formal enactment through recognized procedures. Thus, even if certain laws are
considered morally objectionable, they are still considered valid as long as they have
been lawfully enacted. From this perspective, the focus is on the source of law rather
than its content.
In the case of LGBTQI+ rights, legal positivism would argue that laws protecting the
rights of individuals regardless of their sexual orientation are valid if they have been
lawfully enacted and fall within the recognized legal framework. The moral or ethical
considerations surrounding homosexuality, according to legal positivists, are separate
from the question of legal validity.
On the other hand, natural-law philosophers propose a different view of the relationship
between law and morality. Natural-law thinkers argue that there is an inherent
connection between law and morality, and that laws should align with certain moral
principles or ideals. They contend that laws must conform to an objective moral
standard or natural law, which is derived from human reason or divine authority. Natural-
law philosophers believe that laws that violate these moral principles are not true laws
and should be opposed.2
In the context of LGBTQI+ rights, natural-law philosophers would assess the morality of
laws relating to homosexuality based on their alignment with their understanding of
natural law or objective moral principles. If laws protecting LGBTQI+ rights are seen as
conforming to these moral principles, they would be considered valid and 3just.
Conversely, if laws were viewed as contradicting these moral principles, natural-law
philosophers would argue for their opposition.
1 Unisa. 2023. LJU4801 Study Guide. University of South Africa.
2 Unisa. 2023. LJU4801 Study Guide. University of South Africa.
3 See section 1 of the Constitution of the Republic of South Africa, 1996.
, lOMoARcPSD|21997160
In South Africa, the Constitution guarantees equal rights and protection to all individuals,
including LGBTQI+ individuals, and prohibits discrimination based on sexual
orientation.4 This constitutional protection reflects a legal positivist approach, as it
emphasizes the formal recognition and enactment of laws that safeguard LGBTQI+
rights, regardless of moral perspectives.
However, the ongoing victimization and discrimination faced by the LGBTQI+
community highlight the limitations of legal positivism in achieving social and moral
justice. Critics who view homosexuality as immoral may continue to challenge the
validity of laws protecting LGBTQI+ rights, despite their lawful enactment.
In conclusion, legal positivism and natural-law philosophy offer distinct perspectives on
the relationship between law and morality. Legal positivists prioritize the formal validity
of laws, regardless of their moral content, while natural-law philosophers argue for the
alignment of laws with moral principles or natural law. In the case of LGBTQI+ rights in
South Africa, the constitutional and legislative protections reflect a legal positivist
approach. However, the ongoing challenges faced by the LGBTQI+ community
underscore the need for ongoing societal dialogue and advocacy to bridge the gap
between legal recognition and moral acceptance.
1.2 Section 9 of the Constitution of the Republic of South Africa, 1996 prohibits
discrimination on the basis of sexual orientation. Moreover, the Civil Union Act 17
of 2006 recognises same-sex marriages. Keeping in mind the positivist theory of
adjudication, is the South African position on homosexuality based on law or
morality? Discuss. Your answer should not exceed 750 words. (15)
The South African position on homosexuality, as reflected in Section 9 of the
Constitution and the Civil Union Act, can be considered primarily based on law rather
5
than morality when viewed through the lens of the positivist theory of adjudication.
Legal positivism emphasizes that the validity of law is determined by its source and
formal characteristics rather than its moral content or conformity to an external moral
standard. In this context, the South African legal system recognizes and protects the
4 See section 9(3) of the Constitution of the Republic of South Africa, 1996.
5 See the Civil Union Act 17 of 2006.
Downloaded by Thomas Mboya ()
