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Subject: Legal Philosohy
Code: LJU4801
Date: 29 May 2023
Question 1.
1.1 There is a close relationship between Morality and the law, the two have a close
relationship even though political science studies ethics and political science studies
law. Ethics teaches people the rules of conduct. It illustrates the distinction between
truth and misinformation. It helps us recognize the rightness and wrongness of our
deeds. Ethics enhances our moral standing and enables us to think morally. It
contributes to the development of our moral standards. State-enacted legislation
strives to accomplish the same objective. However, morality is concerned with
collective ideas of what is right and wrong, whereas law is concerned with an
individual's individual liberty. When a man is a member of a certain society, the law
governs his behavior, whereas morals govern. 1 Natural law accept that laws must
conform to moral rules and that if a legal rule violates moral rules, the law must be
invalid. Thus, the validity of the law depends on its moral content. Natural law is an
idea that states that there is a real set of laws that existed before humans created
laws and that provides the standard by which human law can be judged.
1
Irma Kroeze, Legal Philosophy: Only study Guide for LJU4801 (University of South Africa
2017) 63.
, They state that reality consists of two parts: an eternal, unchanging, and universal
part, and a temporal, changeable, and local part. The eternal, unchanging and
universal part, according to these thinkers, is something that can be called an ideal,
a form, religious rules or tribal customs. This eternal aspect of reality cannot be
seen, touched or observed, but it is the perfect example of how things should be. For
example, there is an ideal of justice that never changes and applies to all things in all
places. Practically, this means that when we say a law is unjust, we can judge the
truth of that statement by referring to that ideal. Natural law applies to all people, in
all places, at all times, and can never change. This natural law is the standard by
which we measure all our laws. Every positive human law, whether it comes from a
monarch, a parliament, or a dictator, must meet the requirements of natural law.
Legal positivists argue that a law is valid if it was enacted by a competent legislator
according to established procedures or due process. Thus, the validity of the law
does not depend on its moral content. There is a clear separation of law and
morality.2
The denial of metaphysics and its treatment as mere conjecture forms the
cornerstone of legal positivism. What counts are the things that can be verified
through direct observation, not the presumption that these rules apply. Since this is
the only thing that matters in terms of science, they begin with the accepted, factual,
and positive reality. The first core principle of legal positivism is the separation of
facts from values. This is obviously a rejection of natural law, as is evident. Legal
positivists disagree that the foundation of the law is a set of timeless, unchanging
rules. According to them, the law must be founded on facts, and judges must base
their decisions on facts rather than abstract concepts like morality. They contend
that ideas like rights and duties have different meanings in law and in morality. In
practise, this means that the validity of a duly enacted law can never depend on its
moral content. Hart states that "A concept of law that allows us to distinguish the
invalidity of a law from its immorality enables us to appreciate the complexity and
2
Kroeze, Legal philosophy 63.
