Legal Philosophy

Legal Positivism
Same Sex Marriage Law

There is a history of same sex marriage in other country as early as 1970’s, when the very first lawsuits
seek a recognition of the same sex marriage to question the civil marriage rights and for the same sex couples to
get an attention was unsuccessful. The negative result in their petitions were results of the social facts present
during their timeline. There has been a global recognition of the human rights for LGBTQ+, the denial of the
recognition of human rights for any group of individuals is a denial of their humanity.

The Philippines made the same sex marriage lawful. Interested parties are questioning the
validity of the law and there are major debates among supporters and opposers of the law. This paper will
determine the philosophical ground that support the same sex marriage, the legal positivism. Why is the legal
positivism allows the validity of the law. If you believe that same sex marriage is against the existing morality
or moral standards, is the same sex marriage a valid law? If so, why?

The philosophical idea that permits the validity of the same sex marriage law is the legal positivism. It is
the philosophy of the law that emphasizes the conventional nature of law that it is socially constructed. Also, it
is the view of man-made law as it is set by man for man rather than as it ought to be. It implies that legal rules
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.

The Social Fact Thesis, the Separability Theory and the Conventional Thesis supports the legal
positivism. Social fact thesis explains the validity of law is the presence of a certain social facts, specially a
formal promulgation by a legislature. That there are institutions established primarily for recognizing the rights
of the LGBTQ+ because it is known that they are constantly demanding for equality and recognition because in
numerous times they were subjected to discrimination and abuse. The fact that LGBTQ+’s community is
significant and should be taken to account, as the share of Filipino who favor same sex-marriage grew steadily
for most of the last decade. The thesis of separability, it is noted that the law and morals are two distinct notion.
In the Philippines, the separation of the state and the church is inviolable. The church opposes the same sex
marriage because of religious beliefs. There is a limitation between state and religion, if the state acknowledges
the same sex marriage there is a boundary between the religious concept and the state facts. The Conventional
thesis, the criteria that determine whether or not any given norm counts as a legal norm are binding because of
an implicit or explicit agreement among the legislature. A norm is a valid legal norm by virtue of the fact that it
has been created according to a definite rule which means that laws are in effect not because they are attached
of moral values innate to human nature but because they rest upon references upon other laws and eventually
the basic norm such as the constitution to which all norm whose validity may be traced back.

Legal positivism is contrary to natural law theory. Laws are in effect not because they are attached moral
values innate to human nature, but because they rest upon references to other laws and eventually the basic
norm, namely the constitution, to which all norms whose validity may be traced back. Legal positivity as the
formalistic method allows to bypass moral reasoning, which is often criticized as not verifiable, self-centered or
subjective. The validity of the same sex marriage, under legal positivist’ perspective, coheres with the social
fact principle of justice, and further greatly enhances the general equality among the Filipino citizens. In
addition, positive laws are man-made, contrary to natural law that are discovered by human reason, the success
in the legislation is able to reveal the popularity of the same sex marriage.

Members:

CONJE, ANGELIQUE

CAMACHO, HENRRYLL

DELOS ANGELES, MIKEE

TESORIO, KLER

SACHO, ANDREW ARKHIEL

SALIC, JUNAID

PENUS, ABET

CAPUTILLA, RACHELL