Positivist School

Gerhard John Serquina

Christine Joy Velasco
Joshua Mirabueno
Helen Grace Esteban
Jeandee Fei B. Leonor
September 12, 2019
Positivist School

1. Jeremy Bentham – Introduction to the Principles of morals and Legislation:

Philosophy of human conduct
 “Prudence” – United States vs. Holmes, 26 Fed. Cas 300
2. John Austin – “non-suability of the state”
 Philippine Cases: Switzerland General Ins. Co. Ltd vs. Republic of the Philippines
and Idelfonso Santiago vs. Government of the Republic of the Philippines
3. Hans Kelsen – Pure Theory of Law
 Pure Positive Law Response
 Lausanne Brand and Vienna Brand

4. Immanuel Kant - Categorical Imperative

Jeremy Bentham (1748-1832)
An Introduction to the Principles of Morals
and Legislation

 Utilitarianism
 Moral Theory of Hedonist
 Act Utilitarianism
 Principle of Utility
 Rule of Utilitarianism
 United States v. Holmes, U.S. Circuit
Court, April 22, 1842
Facts:
• She had 17 crews and 65
passengers
• Night of April 19, 1841 the ship
struck an iceberg
• Jolly boat 7c + 1p
• Long boat 9c + 32p has a LEAK!
• Started throwing people
overboard 14m + 2w
• Holmes was the only one found.
Charged of murder and reduced
to manslaughter
Issue:
• Whether or not William Brown is liable to
the death of the passengers and survivors
who were forced out of the boat
Held:
Conventional law ceases and natural law
operates
Self-preservation = self-defense
Ruling:
He was convicted and sentenced to 6 month
in jail and fine of $20. Presidential pardon
for the fine and once released returned to
the sea.
JOHN AUSTIN

 3 March 1790 – 1 December 1859

 English legal theorist
 Theory of legal Positivism
 Opposing traditional approaches of Natural Law
[G.R. No. L27389. March 30, 1970.]
SWITZERLAND GENERAL INSURANCE COMPANY, LTD.
vs.
REPUBLIC OF THE PHILIPPINES

Facts:
 Customs Arrastre Services is under the
Bureau of Customs.
 Customs Arrastre Services received a
cargo of raw materials for paint
manufacturing.
 It was delivered to the consignee and
the consignee sustained losses or
damages.
 Switzerland General Insurance
Company paid for the said losses or
damages, and in return, demanding
payment from respondent.
Issue:
W/N the Customs Arrastre Services can
be sued.
Held:
This appeal is devoid of any prospect of
success.
Ruling:
The doctrine of non-suability is a logical
corollary of the positivist concept of law.
Holmes: NO LEGAL RIGHT VS. STATE
Holmes: Source of law on which right is
predicated
G.R. No. L48214 December 19, 1978
IDELFONSO SANTIAGO
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES

Issue:
Facts:
W/N BOPI can be sued.
 Spouses Santiago donated a property
to the Bureau of Plant Industry (BOPI) Held:
on January 1971. The writ of certiorari prayed for is granted.
 The Terms of Donation; BOPI will:
 Install lighting facilities
Ruling:
 Install water system
 Build office and parking The State may not be sued without its consent.
 Ready by December 1974 Doctrine of Non-Suability VERSUS Equity and
 BOPI did not follow. Justice.

Remedy: Commonwealth Act No. 327

 THE PURE POSITIVE LAW RESPONSE
A. Lausanne Brand
• Ernest Roguin
• Lies in pure juridical science
consistent with the culture of the
people
B. Vienna Brand
• Hans Kelsen
• Removed the concept of any moral
implications in law.
• Only considers human norms not
norms coming from other
superhuman sources.
According to Hans Kelsen: “Laws is indeed separate
from moral law and natural law”

Purification of Positive
Law
 Empirically Empirical Justice
 Not be politicized
• Evaluative approach to
determine primarily what a
person is really entitled to.
Normative Legal Order
• Hierarchy of norms of different level.
• IS and SHOULD statement
• Obey the legal norms otherwise they will suffer
for the consequences
• Pure fact of coercion
Immanuel Kant

 Influential German Philosopher in the Age of Enlightenment

 One of his notable ideas is the Categorical Imperative
Categorical Imperative
 Categorical – means applicable to all situations, an absolute
 Imperative – means something must be done, an obligation

 “Act according to a maxim which can be adopted at the same time as a

Universal Law.”

 Maxim - the principle which makes a certain action a duty