Exam (elaborations)
LJU4801 Portfolio 22 May 2024
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- University Of Cape Town (UCT)
LJU4801 Portfolio 22 May 2024
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LJU4801PORTFOLIO (MAY JUNE)
DUE DATE: 22 MAY 2024
,Question 1
Read the following article and then answer the questions 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,
A sexual 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 LGBTQIA+ 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.
The debate over the relationship between law and morality has been a central issue
in legal philosophy for centuries. This discussion gains particular relevance in
contexts like South Africa, where despite constitutional and legislative protections for
LGBTQIA+ rights, societal attitudes and moral judgments often lead to victimization
and discrimination. To understand how legal systems can both protect rights and
struggle with moral acceptance, it's useful to examine the perspectives of legal
positivists and natural-law philosophers on the relationship between law and morality.
Legal Positivism
Legal positivism is a school of thought that emphasizes the separation of law and
morality. Legal positivists argue that law is a set of rules and principles created by
social institutions and authorities, which are valid irrespective of their moral content.
, This means that a law is considered valid as long as it is enacted through the
appropriate legal process, regardless of its moral implications.3
In the context of discrimination against LGBTQIA+ individuals in South Africa, legal
positivism would suggest that the laws protecting the rights of LGBTQIA+ individuals
should be upheld and enforced, regardless of the moral objections or societal attitudes
towards homosexuality.4 From a legal positivist perspective, the focus would be on the
formal legal status of laws rather than their moral implications.
Legal positivism also highlights the importance of legal principles and procedures,
emphasizing the need for consistency and predictability in the application of law. This
1
Kroeze IJ Legal Philosophy Only study guide for LJU4801, 2020 Muckleneuk, Pretoria, PG 61
2
Kroeze IJ Legal Philosophy Only study guide for LJU4801, 2020 Muckleneuk, Pretoria, PG 77 - 79
3
Kroeze IJ Legal Philosophy Only study guide for LJU4801, 2020 Muckleneuk, Pretoria, PG 78
4
Tsele M, Rights and religion; bias and beliefs: Can a judge speak God? (Journal for Juridical Science 2018) 10
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