LEGAL PHILOSOPHY MAY/JUNE EXAMINATION 2025
NAME: T A Magadze
STUDENT NUMBER: 47668369
MODULE: LJU4801
EXAM: MAY/JUNE 2025
1
,ACADEMIC HONESTY DECLARATION
Declaration:
1. I understand what academic dishonesty entails and am aware of Unisa's policies in this
regard.
2. I declare that this assignment is my own, original work. Where I have used someone
else's work, I have indicated this by using the prescribed style of referencing. Every
contribution to, and quotation in, this assignment from the work or works of other people
has been referenced according to this style.
3. I have not allowed and will not allow anyone to copy my work with the intention of
passing it off as his or her own work.
4. I did not use of another student's work and submit it as my own.
NAME : T A Magadze
SIGNATURE :
MODULE CODE : LJU4801
DATE : 27/05/2025
2
, QUESTION 1
1.1
The criminalisation of prostitution in South Africa, as stipulated in the Sexual Offences Act
23 of 1957, has sparked divergent views regarding its rationale. Some argue that this
legal stance is rooted in moral considerations, while others contend that it is based purely
on legal principles devoid of moral judgments. These perspectives align with two distinct
philosophical approaches: legal moralism and legal positivism.
Legal moralism holds that the law may legitimately be used to prohibit behaviours
considered immoral, even if they cause no harm to others. This view asserts that law can
serve to preserve societal morality and cohesion.1
In the context of prostitution, legal moralists argue that the act undermines human dignity
and moral values. They believe that criminalising prostitution helps maintain public
decency and social integrity.2 These perspectives often originate in cultural or religious
worldviews that deem sex work morally unacceptable.3
Legal positivism, in contrast, argues that the legitimacy of a law derives from its origin
whether it was enacted through proper procedures by authorised institutions rather than
from its moral content.4. Legal positivism is a legal theory that views law as a product of
human decisions and institutions, not moral reasoning. It rests on three key ideas:
Social Fact Thesis: A law’s existence and validity depend solely on social facts what
officials decide, enact, or practice. Law is defined by what is officially established, not by
what is ethically right. For instance, Legal status of prostitution is determined by social
or legal practices, not moral views.
Separability Thesis: Law and morality are distinct. A law can be legally valid even if it is
unjust. Its legitimacy does not rest on moral acceptance. Example, Prostitution laws can
be morally wrong or right, but still legally valid.
1
Devlin, P. The Enforcement of Morals. Oxford University Press, 1965.
2
Feinberg, J. Harm to Others: The Moral Limits of the Criminal Law. Oxford University Press, 1984.
3
Currie, I. & De Waal, J. The Bill of Rights Handbook, 6th ed. Juta, 2013.
4
Hart, H.L.A. The Concept of Law, 2nd ed. Oxford University Press, 1994.
3
NAME: T A Magadze
STUDENT NUMBER: 47668369
MODULE: LJU4801
EXAM: MAY/JUNE 2025
1
,ACADEMIC HONESTY DECLARATION
Declaration:
1. I understand what academic dishonesty entails and am aware of Unisa's policies in this
regard.
2. I declare that this assignment is my own, original work. Where I have used someone
else's work, I have indicated this by using the prescribed style of referencing. Every
contribution to, and quotation in, this assignment from the work or works of other people
has been referenced according to this style.
3. I have not allowed and will not allow anyone to copy my work with the intention of
passing it off as his or her own work.
4. I did not use of another student's work and submit it as my own.
NAME : T A Magadze
SIGNATURE :
MODULE CODE : LJU4801
DATE : 27/05/2025
2
, QUESTION 1
1.1
The criminalisation of prostitution in South Africa, as stipulated in the Sexual Offences Act
23 of 1957, has sparked divergent views regarding its rationale. Some argue that this
legal stance is rooted in moral considerations, while others contend that it is based purely
on legal principles devoid of moral judgments. These perspectives align with two distinct
philosophical approaches: legal moralism and legal positivism.
Legal moralism holds that the law may legitimately be used to prohibit behaviours
considered immoral, even if they cause no harm to others. This view asserts that law can
serve to preserve societal morality and cohesion.1
In the context of prostitution, legal moralists argue that the act undermines human dignity
and moral values. They believe that criminalising prostitution helps maintain public
decency and social integrity.2 These perspectives often originate in cultural or religious
worldviews that deem sex work morally unacceptable.3
Legal positivism, in contrast, argues that the legitimacy of a law derives from its origin
whether it was enacted through proper procedures by authorised institutions rather than
from its moral content.4. Legal positivism is a legal theory that views law as a product of
human decisions and institutions, not moral reasoning. It rests on three key ideas:
Social Fact Thesis: A law’s existence and validity depend solely on social facts what
officials decide, enact, or practice. Law is defined by what is officially established, not by
what is ethically right. For instance, Legal status of prostitution is determined by social
or legal practices, not moral views.
Separability Thesis: Law and morality are distinct. A law can be legally valid even if it is
unjust. Its legitimacy does not rest on moral acceptance. Example, Prostitution laws can
be morally wrong or right, but still legally valid.
1
Devlin, P. The Enforcement of Morals. Oxford University Press, 1965.
2
Feinberg, J. Harm to Others: The Moral Limits of the Criminal Law. Oxford University Press, 1984.
3
Currie, I. & De Waal, J. The Bill of Rights Handbook, 6th ed. Juta, 2013.
4
Hart, H.L.A. The Concept of Law, 2nd ed. Oxford University Press, 1994.
3
