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LJU4801 (LEGAL PHILOSOPHY) PORTFOLIO MAY/JUNE 2024 EXAM
- Course
- LEGAL PHILOSOPHY (LJU4801)
- Institution
- University Of South Africa (Unisa)
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LJU4801 (LEGAL PHILOSOPHY) MAY/JUNE PORTFOLIO 2024QUESTION 1
1.1.
Legal positivists believe that there is a separation between law and morality, and that
the law should be formulated solely based on social conventions that are backed by
state authority. The law, for legal positivists, comes from human creation and is not
subject to any natural basis or divine intervention. Therefore, a law can be deemed
valid even if it is inconsistent with moral principles. Legal positivists contend that the
existence or validity of a normative statement (such as a legal norm) cannot rely on
its moral content but must be grounded firmly on social facts. On the other hand,
natural-law philosophers maintain that law and morality are intertwined. They argue
that legal norms that violate natural law are not just invalid but also unjust. Natural
law concerns what is morally correct and what is not. Laws that conflict with natural
law are considered immoral because of their inconsistency with the fundamental
principles of justice that apply to all human beings. Natural-law philosophers hold
that laws that conflict with moral principles are not binding and do not have the same
level of validity as those consistent with moral principles. In conclusion, legal
positivists and natural-law philosophers differ in their interpretation of the relationship
between law and morality. While legal positivists believe that there is no connection
between the two, and that the validity of a law can be solely based on state authority
and social conventions, natural-law philosophers argue that some laws that are
inconsistent with morality are not just invalid but also unjust. This debate has
implications for the way we view the rights and protections afforded to the LGBTQI+
community, depending on whether we see these rights as grounded in social fact or
natural moral principles.
1.2.
The South African position on homosexuality, as reflected in Section 9 of the
Constitution and the Civil Union Act, is primarily based on law rather than morality.
This aligns with the positivist theory of adjudication, which emphasizes the
importance of interpreting and applying the law as it is written, rather than relying on
personal moral beliefs.
Positivism holds that the law is a separate and distinct entity from morality.
According to this theory, the validity of a law is determined by its source, rather than
its content. In the case of South Africa, the Constitution is the supreme law of the
land, and any law or conduct inconsistent with it is invalid. Section 9 of the
Constitution explicitly prohibits discrimination on the basis of sexual orientation,
providing a clear legal basis for the recognition and protection of the rights of
LGBTQ+ individuals.
The inclusion of sexual orientation as a protected characteristic in the Constitution
reflects a deliberate choice by the framers of the document to promote equality and
non-discrimination. This decision was not based on personal moral beliefs, but rather
on the recognition that all individuals, regardless of their sexual orientation, are
entitled to equal protection under the law. By enshrining this principle in the
, Constitution, South Africa has taken a clear stance against discrimination based on
sexual orientation.
The enactment of the Civil Union Act further demonstrates the legal basis for the
South African position on homosexuality. This legislation recognizes same-sex
marriages and provides for the legal rights and responsibilities that accompany
marriage. The Act was passed by the South African Parliament and signed into law
by the President, following a process of debate, deliberation, and democratic
decision-making. This legislative process reflects the positivist approach to law,
where the validity of a law is determined by its source (i.e., the legislature) rather
than its content.
It is important to note that while the South African position on homosexuality is
primarily based on law, it does not mean that there are no moral considerations
involved. The recognition and protection of the rights of LGBTQ+ individuals can be
seen as a reflection of evolving societal values and a commitment to human rights.
However, the legal basis for these rights is grounded in the Constitution and the Civil
Union Act, rather than personal moral beliefs.
In conclusion, the South African position on homosexuality is primarily based on law
rather than morality. The inclusion of sexual orientation as a protected characteristic
in the Constitution and the enactment of the Civil Union Act demonstrate a
commitment to equality and non-discrimination. This approach aligns with the
positivist theory of adjudication, which emphasizes the importance of interpreting and
applying the law as it is written, regardless of personal moral beliefs.
QUESTION 2
2.1.
Objectivist theories on factors that constrain judges in their decision making focus on
various external and internal influences that may affect their ability to remain
impartial and fair in their judgments. These factors can vary from political pressures
to personal biases to social and economic influences. Objectivist theories argue that
certain constraints can hinder judges from fulfilling their role as impartial arbiters of
the law. One of the key constraints discussed in objectivist theories is the influence
of political pressures. Judges are often appointed by politicians or elected through a
political process, and this can lead to concerns about their independence and
impartiality. Political pressure can come in the form of direct interference in specific
cases or more subtle influence through the appointment process or public opinion.
Objectivist theories argue that judges may feel compelled to rule in a way that aligns
with the preferences of the political actors who appointed or support them, rather
than interpreting and applying the law objectively. Another constraint highlighted by
objectivist theories is the impact of personal biases and prejudices on judges'
decision making. Judges are human beings with their own beliefs, values, and
experiences, which can affect their interpretation of the law. Objectivist theories
argue that judges may struggle to remain impartial when their personal biases align
with the issues at hand in a case. This can lead to decisions that are influenced by
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