Legal Positivism

Dumo, C., Fernandez, J., Ferrer, I.C., Paica, R.

Topics
• Concept and Principle of
Legal Positivism
• Proponents of Legal
Positivism
• Application to the
Philippine Legal System
• Natural Law v Legal
Positivism
Concept
Legal Positivism

• Decided by formal institutions.

• Systematically written down.

• Enforced by the government and

government agencies.
Principle
Legal Positivism

• The existence and content of law

depends entirely on social facts.

• There is no necessary connection

between law and morality.
Proponents
• Jeremy Bentham
• John Austin
• Hans Kelsen
• Herbert Hart
 Jeremy Bentham
• a legal philosopher and is generally,
recognized as the most influential
legal philosopher of the doctrine of
legal positivism.
 Jeremy Bentham
• He said that substantive legal
positivism divided the subject of
jurispudence
 Jeremy Bentham
• a legal philosopher and is generally,
recognized as the most influential
legal philosopher of the doctrine of
legal positivism.

"The Law as it is and the Law as it ought

to be"
 What is
jurisprudence by
the way?
 What is
jurisprudence by
the way?
• Substantive legal positivism divided
the subject of jurisprudence:

• The law as it is
• The law as it ought
to be
 The Law as it is or the
Expository Jurispudence of
Exhibitive

The Law as it is or the facts of the Law.

It answers the question, what the law is
by exposed facts. That is why it is also
called, Expository Jurisprudence or
Exhibitive (evidence) or fact. It is
identification of what the law is.
 FOR
EXAMPLE!!
The Law as it ought to be or
Censorial jurisprudence

- Value

- It answers the question what is the

reason.

- It seeks to discuss reasons or what the

law ought to be.
In determining the usefulness
of the action, we have to use
the Principle of Utility. The
Law should benefit the
Sovereign People, should
serve an advantage to the
citizen.
The distinction between the law
as it is and the law as it ought to
be did not represent the
distinction between fact and
value that characterized
substantive legal positivism, but
rather a distinction between an
actually existing state of affairs,
whether past or present.
 Therefore, the statement
of value is also a
statement of fact and there
is no statement of fact that
do not have value, whether
positive or negative.
 John Austin
• Austin was born on March 3, 1790 and
died on December 1, 1859
• He married Sarah Taylor
• Neighbours and close friends with
Jeremy Bentham, James and John
Stuart Mill.
• Appointed Professor of Jurisprudence
at the newly-founded University
College London in 1826.
 John Austin
• His major work became influential
after his death, when his widow
published a second edition in 1861. A
second book then was put together by
his wife through his notes and
published in 1863.

• He became known as the English legal

theorist.
What was John
Austin’s contribution
to Legal Positivism ?
This two-fold view, that:

• law and morality are separate

and;

2. that all human-made

("positive") laws can be
traced back to human
lawmakers, is known as
legal positivism.
 Key Legal Concepts
Empirical
• Law is a social fact and reflects relations of
power and obedience.
• Sanctions are credible threats in the event of
non-compliance.
• The sovereign in any legal system is the
person or group of persons.
• A command is a declared wish that something
should be done and such commands give rise
to legal duties to obey.
Herbert Hart
• Herbert Lionel Adolphus Hart
FBA known as H.L.A Hart was
an English Legal philosopher.

• He was the Professor of

Jurisprudence at Oxford
University and the Principal of
Brasenose College, Oxford.
Herbert Hart
• His most famous work is The
Concept of Law which has been
hailed as "the most important
work of legal philosophy written
in the twentieth century".

• He is considered one of the

world's foremost legal
philosophers in the twentieth
century.
Analytical Basis of
Hart's legal
philosophy
Two different types of rules

• Primary Rules

• Secondary Rules
Primary Rules
• They impose certain specific duties
upon the citizens of a state to act in a
certain manner, or they may be subject
to certain legal sanctions.

• primary rules are generally what the

ordinary citizen means when he refers
to something as “the law.”
Examples:
laws setting speed limits,

laws prohibiting trespassing or laws

prohibiting corporations from requiring
their employees to make contributions to
political campaigns
Secondary Rules

• they state the manner in which primary

rules may be recoognized, changed
and adjusticated.

• rules about primary rules.

Examples:

• they grant the Congress the power to

legislate and private citizens the right
to vote.
Categories of Secondary Rules

• Rules of Recognition

• Rules of Change

• Rules of Adjudication
Rules of Recognition
Rules of recognition provide a mechanism for discovering
just what is or is not a legitimate primary rule.

EXAMPLES:
The City of Cebu passed a law which forbids the sale of
alcoholic beverages on Sunday before 12:00 noon. The
municipal ordinance will control if there is no state statute
regulating this area. The ordinance may also be held invalid
by a judicial decision with a constitutional provision.
Rules of Change
• these are necessary to
efficiently allow primary rules
to be amended.
• They specify how primary rules
be changed.

EXAMPLES:
The Philippines Constitution can be
amended, and statutes can be
repealed or modified later statutes.
Rules of Adjudication

• These are essential to a legal

system of a complex society
and are intended to remedy the
inefficiency of a legal system
with just primary rules.
Rules of Adjudication

• it sets the criteria for

determining when a primary
rule has been broken and what
procedure is to be followed
when the primary violation has
been established.
In summary, the main difference between
Hart's legal positivism and natural law
theory lies in their views on the relationship
between law and morality. Legal positivism
emphasizes the separation of law and
morality, while natural law theory asserts a
fundamental connection between the two,
with moral principles serving as a
foundation for just laws.
APPLICATION OF HART’S
LEGAL POSITIVISM IN
THE PHILIPPINE LEGAL
SYSTEM
• POSITIVE LAW BASIS
Hart's legal positivism emphasizes
the importance of positive law,
which is law created by human
authorities, such as legislatures and
courts.
2. Separation of Law and
Morality

Hart's theory posits that the validity

and existence of law do not depend
on moral considerations.
3. Legal Rules and Social
Facts:

Hart emphasizes the importance of

legal rules and social facts in
determining the content and validity
of law.
4. Recognition of Legal
Officials

Hart's theory also looks at how

legal norms are recognized and
accepted by legal officials.
5. Change and Evolution of
Law

Legal positivism allows for the

acknowledgment that legal systems
can change and evolve over time.
6. Legal Validity and Efficacy

Hart's theory distinguishes between

the existence of law and its validity.
It's important to note that while Hart's
legal positivism can be applied to the
Philippine legal system as an analytical
framework, there may be specific
cultural, historical, and sociopolitical
factors that influence the application of
legal theory in a particular jurisdiction.
Legal theorists and scholars in the
Philippines may adapt and modify these
theories to better fit their local context
and legal practices.
Hans Kelsen
• He maintained that laws are a normative
domain (Doctrine of Basic Norm) which
does not make it right or not even legal
right.
WHAT IS
NORM?
NORM
• Shared rules and expectation.
• Maintaining social order.
• Defining cultural values.
• Shaping interactions.
NORM
• Folkways
⚬ Customs we follow but usually
unwritten.
• Taboos
⚬ Things that people find offensive or
socially inappropriate.
• Mores
⚬ Based on moral standards.
• Laws
⚬ Actually defined to be illegal or
legal.
 Legal Positivism
Philippine Legal System

Concept Application

• Decided by formal institutions. • Initiated by The Congress (HRs and

Senators)

• Systematically written down. • Drafted as Bill (House/Senate), reading

for discussion and voted by The
Congress (as required by law), and for
approval by the President.

• Enforced by the governing bodies and

• Enforced by the government and agencies of the government.
government agencies.
 Natural Law Positive Law

Time Stamp 9:30

https://www.youtube.com/watch?v=hWsw2
Wai9BI
Natural Law Positive Law

Laws based on morals and Laws based on what should

ethics, where humans have be right and wrong for the
the free will to choose what people. There a sense of
they think or feel what is imposing what is right and
right or wrong. wrong to the people.
“THE LAW
MAY BE
HARSH BUT
IT IS THE
LAW.”