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Question 1
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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 question in legal philosophy: How do legal positivists and natural-law
philosophers perceive the relationship between law and morality?
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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
their formal enactment through recognized procedures.1 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.
Naturallaw 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 just.2
Conversely, if laws were viewed as contradicting these moral principles, natural-law
philosophers would argue for their opposition.
In South Africa, the Constitution guarantees equal rights and protection to all
individuals, including LGBTQI+ individuals, and prohibits discrimination based on
1
Unisa. 2023. LJU4801 Study Guide. University of South
Africa. 2 Unisa. 2023. LJU4801 Study Guide. University of
South Africa.
2
See section 1 of the Constitution of the Republic of South Africa, 1996.
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sexual orientation.3 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
than morality when viewed through the lens of the positivist theory of adjudication. 5
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
rights of individuals regardless of their sexual orientation, reflecting a legal framework
that upholds equality and non-discrimination.
3
See section 9(3) of the Constitution of the Republic of South Africa,
1996. 5 See the Civil Union Act 17 of 2006.
