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Definition Positivism is from the Latin root positus, which means to posit, postulate, or firmly affix the existence of something.1 Legal positivism is a school of jurisprudence whose advocates believe that the only legitimate sources of law are those written rules, regulations, and principles that have been expressly enacted, adopted, or recognized by a governmental entity or political institution, including administrative, executive, legislative, and judicial bodies.2 it come from? Legal positivism is a theory which answers these questions. Legal positivism is the legal philosophy which argues that any and all laws are nothing more and nothing less than simply the expression of the will of whatever authority created them. 4 Thus, no laws can be regarded as expressions of higher morality or higher principles to which people can appeal when they disagree with the laws. It is a view that law is a social construction.
question to be asked when talking about this theory is “What is law?” 3 Is it written? Where does
The creation of laws is simply an exercise in brute force and an expression of power, not an
attempt to realize any loftier moral or social goals.6 Therefore, from a positivist perspective, it can be said that “legal rules or laws are valid not because they are rooted in moral or natural law, but because they are enacted by legitimate authority and are accepted by the society as such”.7 B. History of Legal Positivism and its Proponents
Legal positivism has ancient roots. Christians believe that the Ten Commandments have sacred and pre-eminent value in part because they were inscribed in stone by God, and delivered to Moses on Mount Sinai. When the ancient Greeks intended for a new law to have permanent validity, they inscribed it on stone or wood and displayed it in a public place for all to see. In classical Rome, Emperor Justinian (483-565 A.D.) developed an elaborate system of law that was contained in a detailed and voluminous written code.8
thefreedictionary.com Official Website Ibid. 3 Ibid. 4 Atheism.About Official Website 5 Stanford Encyclopedia of Philosophy Official Website 6 Atheism.About Official Website 7 Business Dictionary Official Website 8 Legal Positivism - Further Readings at Law.Jrank.Org Official Website
there must be some coercive power to compel men equally to the performance of their covenants … and such power there is none before the creation of the commonwealth”.Prior to the American Revolution. and that which every man will have so. its merit or demerit is another. by which we regulate our approbation and disapprobation.”14 John Austin on the other hand.”13 Furthermore. nothing being reputed unjust that is not contrary to some law. is a law. he concludes that “all that is done by such power is warranted and owned by every one of the people. English political thinkers John Austin and Thomas Hobbes articulated the command theory of law. “Introdution to Legal Philosophy”.9 Thomas Hobbes argued that “it is improbable for any statute to be unjust”. Crisolito. 15 Ibid. “Introdution to Legal Philosophy”. 16 Stanford Encyclopedia of Philosophy Official Website 10 2 . Pascual. 9 Ibid. the sovereign is not subject to laws for having the power to make and repeal laws for having the power to make and repeal laws. he may. adopted some ideas of Thomas Hobbes in his legal philosophy about the nature of law. free himself from their subjection. though we happen to dislike it. For Hobbes. whether it be or be not conformable to an assumed standard. Crisolito. he meant that “laws are the rules of just and unjust. A law. or though it vary from the text.”12 What he stressed is that “to the care of the sovereign belongs the making of good laws. Whether it be or be not is one enquiry. is a different enquiry. “before the names of just and unjust can take place. he was known individually for his “dogma” of legal positivism which states that16: The existence of law is one thing. 13 Pascual. page 171 11 Ibid. because only the sovereign is entrusted with the power to enforce its commands with military and police force. which stood for the proposition that the only legal authorities that courts should recognize are the commands of the sovereign. 12 Ibid.11 In this. no man can say is unjust. when he pleases. page 172 14 Ibid. 10 According to him. which actually exists.15 Additionally.
Austin thought that all independent political societies.. Whether it be or be not is one enquiry. “the existence of the law is one thing its merit or demerit is another. Legal Positivism . Jr. whether it be or be not conformable to an 17 18 Ibid. are what I mean by the law".Further Readings at Law. by their nature. Approaches to Legal Positivism According to John Austin. and constitutional law) and “laws by remote analogy” (e. to be contrasted to other law-givers. as contrasted with specific or individual commands (“drink wine today” or “John Major must drink wine”). Another famous advocate of legal positivism in America’s history is probably Justice Oliver Wendell Holmes.Jrank. and “an evil” to be imposed if that wish is not complied with. • The “sovereign” is defined as a person (or determinate body of persons) who receives habitual obedience from the bulk of the population.19 II. In making this statement. Holmes was suggesting that the meaning of any written law is determined by the individual judges interpreting them. He wrote that the "prophecies of what the courts will do in fact. have a sovereign.Austin defined law by saying that it is the “command of the sovereign”. and until a judge has weighed in on a legal issue. and nothing more pretentious. Positive law consists of those commands laid down by a sovereign (or its agents). He expounds on this further by identifying the elements of the definition and distinguishing law from other concepts that are similar17: • • • “Commands” involve an expressed wish that something be done. the laws of physics). international law. 3 .Org Official Website 19 Ibid. and the general commands of an employer to an employee. Rules are general commands (applying generally to a class). but who does not habitually obey any other (earthly) person or institution.g. the law is ultimately little more than an exercise in trying to guess the way a judge will rule in a case.18 Holmes made a description of what positive law is in the realm of the courts. like God's general commands. laws of honor. • Positive law should also be contrasted with “laws by a close analogy” (which includes positive morality. customary law.
a contemporary legal positivist. and the fact that it is unjust.23 20 Stanford Encyclopdia of Philosophy Official Website http://web. According to positivism. you need to figure out what is the true morality. you need to look at what laws your society has.pdf 22 Ibid. The fact that a policy is just. and not on the extent to which it satisfies ideals of justice. In inclusive positivism or also known as incorporationism or soft positivism. According to Hart. They may be legislative enactments. wise. the law and morality are conceptually distinct. Some exclusive positivists subscribe to the Source Thesis. In order to know what your legal rights are. or prudent is never a sufficient reason for thinking that it is actually the law.edu/~dscoccia/376web/376lpaust. separation thesis is the essence of legal positivism. judicial decisions.assumed standard. the merits of law do not determine whether a law or a legal system indeed exists. the most popular version or interpretation would be that of the Separation Thesis. According to this. The laws which are in force in a certain system depends on what kind of social standards its officials recognize as authoritative. There are many versions or interpretations of legal positivism. or peripheral to the philosophy of law. unwise.22 However. efficient. However. in which it denies that a legal system can incorporate moral constraints on legal validity. 23 Stanford Encyclopedia of Philosophy Official Website 21 4 .”20 The positivists do not say that the law’s merits are unintelligible.21 The main point or essence of this thesis is that. the existence and content of law can always be determined by reference to its sources without recourse to moral arguments. there some conflicting views on whether there are possible legal systems with such constraints. In order to know what your moral rights are. But perhaps. or rule of law. The existence of a legal system in a society can be inferred from the different structures of governance present. and the society might also deny a person’s legal rights that the true morality dictates one must have. inefficient or imprudent is never a sufficient reason for doubting it. it is possible for a society’s rule of recognition to incorporate moral constraints on the content of law. is another enquiry. Contrary to this is the exclusive positivism or also called as the hard positivism. unimportant. It is possible for a person to have legal rights that the true morality says he should not have.nmsu. law is a matter of what has been posited. democracy. or social customs.
even if a wrong is done by the state. “Introduction to Legal Philosophy”. page 187 5 .25 III. however. the very fact that Austin thinks that the specific content of the law considers not only an inquiry into its existence.24 Herbert Hart. he also said that Austin did not imply that positive law is non-moral.27 But it must be remembered that the exercise of the will of the supreme political superior by the government is not absolute. He explained that Austin did not actually say that the norms of moral law and the precepts of the natural law did not have any influence in the promulgation of rules and regulations. pages 186-187 27 Ibid. the law is the expression of the will of the state laying down the rules of action upheld by force. Therefore. page 174 26 Pascual. vested with the power to “inflict an evil or pain in case its desire is disregarded”. the supreme political superior is the state. as a collective legal association under the rule of the majority. But this does not mean that the state can do no wrong in the expression and enforcement of its will. The legal doctrine of non-suability was derived from this concept. but also a separate inquiry into its merit or demerit. reproduce or satisfy certain demands of morality. based on the essence of the thesis. A person may argue that positive law must conform to moral and natural law but to say that positive law is null and void simply because it is conflicting with the moral and natural law is foolish and absurd. “Introduction to Legal Philosophy”. When there is a deliberate and unrelenting disregard of the 24 25 Ibid. Pascual.26 From the concept of law of the positivists. the law must be entirely free of moral notions. Crisolito. Crisolito. and do at least sometimes. according to some people who have given interpretation to this. implies that the laws can. no right can be claimed against it. a legal philosopher agrees with Austin. THE LAW AND THE STATE/THE SUPREME POLITICAL SUPERIOR In Thomas Hobbes’ and John Austin’s legal positivism. However. the state is perceived as the creator and enforcer of the law who is therefore.Going back to Austin’s legal positivism as explained by the separation thesis. In addition to this.
most probably it will just be ignored by the people since it is not enough to make an impression or not enough to excite or arouse their collective sense of antipathy. page188 Ibid. Depending on the intensity or graveness of the governmental challenge. 28 There are two ways of manifesting the popular response of the people. It happens or arises only in situations or circumstances in which the people are having special difficulty and arouses them to engage in this kind of response in order to check and contain the excesses in the exercise by the government of the powers delegated to it. there are some factors that can serve as a guide. 30 There is no hard and fast rule that can be laid down with which to measure the intensity of the challenge of the government. the revolutionary response depends on the combination of the conditions that produce or promise the best average result for the people. the people may already act effectively. which is an uprooting type. page 189 6 . the people may decide to resort to this response or not. the majority members of the society may blunt. page 188 Ibid. The governmental challenge’s evaluation is a matter that addresses itself to the conscience of the people. curb. COMMAND THEORY OF LAW 28 29 30 31 Ibid. Therefore. The second type is not easily provoked. page 188 Ibid. so as not to allow the governmental challenge to succeed and reach its maximum intensity. In this kind of situation. But if the governmental challenge is at its optimum intensity. which is a peaceable type. or even deny by response the adverse governmental challenges. 31 IV. One is by an electoral response. However. But when the challenge reaches its maximum intensity or the challenge of the government has assumed such tremendous proportions.will of the supreme political superior in the exercise of governmental powers. only with outside assistance or intervention may the will and power to resist be bargained. The second type is the revolutionary response. Electoral response is set not too far apart nor too close to each other. the capacity of the people to respond has been stifled. 29 When the challenge is only minimal.
“Introduction to Legal Philosophy”. Positive law has a criterion of its own. It is a general theory of law. the traditional legal philosophies were hopelessly contaminated with political ideology and moralizing. Its aim is to free the science of law from alien elements. Kelsen claimed that at that time.36 It is characterized as a “pure” theory of law because it aims to focus on law alone. 32 Illustration33: V. but it offers a theory of interpretation. the philosophy of legal positivism. “Introduction to Legal Philosophy“.35 Hence. “Pure Theory of Law”. not an interpretation of specific national or international legal norms.Austin’s particular theory of law is often called the “command theory of law” because the concept of command lies at its core. Crisolito. namely. page 177 35 Stanford Encyclopedia of Philosophy Official Website 36 Kelsen. reiterated Austin’s idea that “the concept of law has no moral connotations whatsoever. page 1 37 Stanford Encyclopedia of Philosophy Official Website 7 . Don.37 It only describes the law and it also attempts to eliminate or set aside anything that is not law. and sanction. command. Crisolito.”34 During the 20th century. This simply means that any violation of the command issued by the supreme political superior or the sovereign is an infraction thereof and subject to sanction. KELSEN’S PURE POSITIVE LAW Hans Kelsen. Kelsen wanted to show his pure concept of positive law by eliminating any 32 33 Pascual. page 174 Hubin. Hans. “Classical Legal Positivism” 34 Pascual. Kelsen propounded the idea of a Pure Theory of Law. which rests on the triune concepts of sovereign. which is a theory of Positive Law. an Austrian jurist and philosopher.
He maintained that legal norms are created by acts of will or in other words. or simply the grand norm. “the law is simply not pure when cluttered with axiological norms. Crisolito. or rule that forms an underlying basis for a legal system. page 179 42 Pascual. the free encyclopedia 44 Pascual. the pure law theory takes only into consideration only the norms created by the acts of human beings.significance of the norms of moral law to positive law. “Introduction to Legal Philosophy”.38 According to Kelsen. the nature of the law “is not simply a system of coordinated norms of equal level but a hierarchy of legal norms of different level. products of deliberate human action. and capacity of the people. legal norms). on which the basic law and constitution can gain their legitimacy from.41 VI. then legal norms would not be positive or jussive and would be a problem in setting a guide to the legal ordering of the society. According to Kelsen.43 In other words. order.40 In relation to this. competence. “Introduction to Legal Philosophy. Thus. NORMATIVE LEGAL ORDER According to Kelsen.44 38 39 Kelsen. Kelsen came up with this because there is a need to find a point of origin for all law.” 39 The law according to Kelsen is a system of norms. the grand norm no longer depends on the moral law or natural law for its validity. as opposed to moral norms which is by God. Hans. all the legal norms coming or emanating from this are all valid even if there are criticisms made based on moral or natural law.” For if the law were a system of coordinated norms which are of equal level only (norms of moral law. page 1 Pascual. Crisolito. which is “not a product of free invention nor is it presupposed arbitrarily.” This grand norm came from the collective will. “Introduction to Legal Philosophy”.” page 181 43 Wikipedia. Crisolito. there is such as thing as a grand unchallengeable norm. precept of natural law. Crisolito. page 178 40 Stanford Encycolpedia of Philosophy Official Website 41 Pascual. “Pure Theory of Law”.” page 181 8 . “Introduction to Legal Philosophy.42 Kelsen used this term to denote the basic norm. not norms which come from other superhuman authorities.
The response of the person that he pays his taxes on time because the legal norm commands him to do it is obviously an is-statement.46 Another way on answering or reasoning is to discharge a conscientious obligation. “Introduction to Legal Philosophy”. page 182 47 Ibid. the purpose of the person in paying his taxes is to avoid criminal prosecution. 9 . It is a tense indicative of a conscientious desire to discharge and obligation. or something should be done. An 45 46 Ibid. First function is the prescriptive. As for the “ought-statement” that something should be. In this example. In this example. which can mean that he would not pay at all if he can get away with it. An example of this would be trespass to dwelling which is prohibited as written in the Revised Penal Code. or something is not done is expressive of a simple reason for action. the normativeness of the legal norm has evaporated. which ordains a person to give.” The “is-statement” that something is.The pure positive law theory also distinguishes the “is-statement” from the “oughtstatement. to do or not to do something. In this type of situation. in the normative legal order. there are two ways or reasons for complying with the legal norm of paying taxes. Crisolito.” One may answer that he needs to pay his taxes so that he will not be caught in a situation with unpleasant consequences. there is a higher justification for action. or something should not be done is expressive of a higher kind of reason for action. The other is the authoritative function which delegates to the people the power to issue rules and regulations to implement a legal norm. the people should pay their taxes on time because the legal norm should be observed or obeyed. which is to discharge o conscientious obligation without any thought of getting away from it. here is an example: Why should the people pay taxes on time? As stated above. An example answer would be. According to Kelsen.47 Thus. specifically the “is-statement” and the “ought-statement. an answer applying the ought-statement to the question why people should pay their taxes on time is the correct one.45 For illustration purposes. the jussiveness of a legal order preserved and its functions are clarified as well. pages 181-182 Pascual.
or permitted by the legal norm.50 48 49 Ibid. In the case of morality. Essential Attributes of the Law The law has three essential attributes. An example of a moral obligation are the obligations provided in Article 1423 of the Civil Code of the Philippines. Crisolito. However. page 190 10 .48 The acts of the different branches of the government are considered as measures of coercion. they must suffer the consequences. Sanctions and incentives are attached to a legal norm. These norms of conduct bring about peace and order within the society. There is no cause of action to enforce performance of it. Ibid. if not.49 VII. to do or not to do something. It is because of the positive and jussive characteristic of the law that the members of the society are obliged to conduct themselves in the manner prescribed. the rule or norm is different or separate from morals. This is what distinguishes a legal norm from other social norms. namely. 50 Pascual. Conscious formulation as an element. distinguishes a rule or norm of positive law from a rule or norm of morality. Self-defense would fall under this. “Introduction to Legal Philosophy”. when they are voluntarily done they cannot be undone anymore even on the allegation that their performance was without legal consideration. They should observe and obey the legal norms. This may have been the best defense yet for the positivist theory of the conceptual independence of law from moral and natural laws. A specific rule or norm of human conduct must be articulated before there would be an actual law of any kind. and authoritativeness. the permissive function which allows a person to give. the legal norm should provide for an exemption from any sanction that may be attached to it. If the law is not considered as positive or jussive. there is no conscious articulation to lay it down as such. the conscious formulation. generality. Lastly. As a conscious exercise of authority.example for this type of function would be the issuance of administrative rules which would need the force of society to back it up. then it becomes the same or similar with the other social norms. There is no need for further deliberation amongst the members of the society. authorized.
Natural Law53 Natural law is law that already exists and is waiting to be discovered. or properties. giving the people in authority the coercive competence to enforce the rules or norms within the limits set by law.edu 55 www. A sanction is any eventual evil annexed to the rule or norm and may take the form of some punishment.55 It is that system of moral and ethical principals that are inherit in human nature and can be discovered by humans through the use of their natural intelligence.The next attribute is known as generality.51 The last attribute is the authoritative enforcement. 52 VIII. or making it not merely hortatory or advisory. or enforced prevention.org 11 . The positivists criticize the idea that natural laws are inherent in the concept of law. It is because of this attribute that sanctions or incentives are provided. or substituted redress. This is the element that makes the law imperative and jussive. Legal positivism is the view that law is fully defined by its existence as man-made law. It is a system of rules established by the governmental power of a state. specific. Positive law can be based upon natural law. The positivist approach has a recurring problem of the separation of law from moral law and natural law. Rules or norms should be in general. 54 It refers to the standard of conduct that transcends human authority. or in other words. it involves or entails with it a duty to obey. A rule or norm should not be in the particular form for that would determine only specific acts. “Introduction to Legal Philosophy”. John Austin advocated the separation of law and morals. When a rule or norm is backed by the authority of the state. This is the crucial characteristic of legal rules or legal norms. persons.studywell.americanlaw. pages 190-191 53 Pascual. Positive Law vs. Crisolito. it must prescribe courses of conduct for all members of a society or for all members of a class. Function of positive law is to define the natural law and make it explicit. 54 www. but generally this view of law is opposed to the classical understanding of natural law. Ibid. to make it effective thru sanctions. 51 52 Ibid. Positive law is law made by man.
” John Austin emphasized that law is not directly related or has no “immediate concern” to natural or moral law. A rule cannot be made before the occurrence of the facts it purports to regulate or govern. Another problem of the positivist approach with regard to the nature of law is that it deals with the empirical sphere of reality ( that is ) rather than the transcendental sphere of the ideal (the ought). 12 . It is better if the concept of law is free from metaphysical speculation. Law is not necessarily a moral concept and moral considerations do not necessarily precede law. In the positivists view. To understand the conflict between the historical view and the positivists view. There are conflicting precepts of natural law making it difficult to establish which is right and which is wrong. Whatever their relation may be is only mere accidental and not immediate. How people settled injuries or liabilities to others were quite similar to the present days. There are legal rules that do not measure up to moral law but do not cease to be legal rules. although the latter’s influence are not completely denied. Rules back then were not established but were followed as they are now. Conflict with Historical View56 The positivists view the law as simply the conscious creation of supreme political superior.Legal positivists do not believe in natural law in the legal ordering of society because natural law is not common to everybody.“ With the goodness or badness of law as tried by the test of utility or by any of the various tests which divide the opinions of mankind it has no immediate concern. There is no much conflict at all. IX. the historical view that the law emanates from life and spirit is ambiguous. a man-made set of rules established and enforced by the state. rules were traced back in its simple beginnings. In the legal positivists point of view. In its perspective. 56 Ibid. the body of legal rules should exist without conscious regard for the norms of morality. the act has to happen before a rule can be made precisely to govern it.
in securing human rights. Lon Fuller Fuller denies the separation of law and morality. not with an account of political organization. Every modern rule has its own beginning.It can be drawn that the modern rules in relation to a particular place or people mostly were traced or taken from past rules or from another legal system. If an amoral law is made. 57 Stanford Encyclopedia of Philosophy 13 . A. B. there is still an obligation to obey. consistent. he denies that local theories of particular legal systems can identify law without recourse to its merits. whether or not those considerations are determined by any source. He believes that whatever virtues inherent in or follow from clear. and to the extent that. but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects. prospective. Ronald Dworkin Dworkin denies that there can be any general theory of the existence and content of law. A society has a legal system only when. or to govern with integrity and yet it has no relevance with our morals. it honors this ideal. and he rejects the whole institutional focus of positivism. For him a theory of law is a theory of how cases ought to be decided and it begins. The law has important functions in creating harmony and peace in our lives. including custom and positive morality. and open practices can be found not only in law but in all other social practices with those features. X. and its law is the set of all considerations that the courts of such a society would be morally justified in applying. advancing the common good. His other criticism is that if law is a matter of fact then we are without an explanation of the duty to obey. the issue of conflict of positivists view and historical view is not as real as it was thought. Critique of Legal Positivism57 The most influential criticisms of legal positivism all flow from the suspicion that it fails to give morality its due.
html 3) Kelsen.About Official Website - http://atheism. Hans. “Classical Legal Positivism” 6) Stanford Encyclopedia of Philosophy Official Website .htm 2) Business Dictionary Official Website -http: //www.businessdictionary.com/library/glossary/political/bldef_legalpositivism.pdf 5) Hubin.edu/~dscoccia/376web/376lpaust.nmsu.stanford.com/definition/legal-positivism.http://plato.BIBLIOGRAPHY 1) Atheism. Don. 4) http://web.edu 14 .about. “Pure Theory of Law”.
7) Legal Positivism .shsu. Manila:1994 9) thefreedictionary. Crisolito.studywell.org San Beda College-College of Law Mendiola. Manila LEGAL POSITIVISM In partial fulfillment of the requirements in Legal Philosophy 15 .html 8) Pascual.Org Official Website - http://law. the free encyclopedia 11) www.org/pages/8154/Legal-Positivism.Further Readings at Law.thefreedictionary.jrank.edu 12)www.com/Legal+Positivism 10) Wikipedia.Premium Printing Press. “Introdution to Legal Philosophy”.com Official Website at http://legal- dictionary.Jrank.
2008 16 .1-G Avril Gamboa – 1-G Kate Punzalan – 1-I Presented to: Atty.Presented by: Issa Andaya. Dacanay November 22.
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