POSITIVIST PERSPECTIVE

Prepared by:
Gamier, Franz Carmel
Garcia, Gladys
Hortal, Mel Johannes
Padilla, Joana Liza
San Jose, Geno
Tabigne, Angelique

The Positivist Perspective

24. Seed of Legal Positivism

Analytical jurisprudence is one of the older systems of legal science in the earlier
century, used by Romans, in the use of analysis. It deals with mature legal
systems and one of the recent methods of the science of law. Analytical
jurisprudence was later on labeled as the positivist jurisprudence. Since in dealing
with the mature legal systems, which John Austin (1770-1859) developed,
analytical technique is not exclusive with this juristic school because of the
perception that the law is consciously created by the state. Therefore, law is
positive and say posited by the authority of the state. It was said that the seed of
legal positivism was planted by Socrates. In Platos Crito, Plato recorded that the
followers of Socrates sent Crito to help Socrates escape from prison after he was
sentenced to forfeit his life. Socrates refused and told Crito that while he
considered the sentenced passed upon him to be unjust and unfair, it was,
nevertheless, lawfully rendered and, therefore, he intended to obey it.
25. The Positivist Approach
Two Important points underlying the Positivist Approach
1. Law is Not Necessarily A Moral Concept
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John Austin advocated the separation of law from moral and natural laws. He
said that the law is not necessarily interested in or anxious for the norms of
morality. Moral considerations do not consciously precede the law, although
there may be indirect influence to it. The relationship between the law and
morality is only accidental, not direct. The principal thrust of positivist is to
keep the legal order apart from the perplexities of ethics, just like a physicist
would like to keep people out of the laboratory. The legal positivists believed
that the legal order can exist even without the conscious regard to the norms
of morality, although there are influence that cannot be denied. There are
legal rules that do not ceases to be legal rules even though they do not
measure up to the norms of moral law. The still pose obedience to the
members of the society.

2. Uncluttered By Metaphysical Speculations

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The Positivist school of jurisprudence views the issue by way of the empirical
sphere of reality rather than transcendental sphere of ideal the ought. They
do not hide their disillusionment with the use of natural law theory in the legal
ordering of society. The positivist school of jurisprudence separate the
concept of law from metaphysical speculations avoiding the study of the
nature of law characterized by the ought.

26. Hobbes Austin Concept

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Thomas Hobbes (1588-1679)

One of the jurisprudents who developed the concept of law in terms of legal
positivism. He posited the idea that it is improbable for any statute to be
unjust because as he explained, To the care of the sovereign belongs the
making of good laws. He reiterated that good laws are not just laws for
laws cannot be unjust since they are made by the sovereign power. Hobbes
concluded that all that is done by such power is warranted and owned by
everyone of the people, and that which every man will have so, no man can
say is unjust.

John Austin (1790-1859)

Embedded in some of the ideas of Thomas Hobbes, Austin was also
perplexed by the criticisms directed at legislation which do not conform to the
precepts of the natural law. It is absurd for one to say that positive law is void
if it is not in accordance with the natural law. One should always distinguish
the issue of conformity of positive law to the precepts of the natural la w from
the question of validity of positive law. For Austin, the issue of conformity
and the question of validity are two entirely different problems with different
solutions. Austin never believed that the philosophy of the natural law is
based on the view that the ought is really non-existent.

27. Legal Positivism

Legal Positivism is a school of thought of analytical jurisprudence, largely
developed by eighteenth and nineteenth century legal thinkers. Positivists
developed empiricism and logical positivism and set the theoretical foundations
for such developments to occur. They include the contentions that:
1. Laws are commands of human beings.
2. There is no necessary connection between law and morals that is, between
law as it is and as it ought to be.

3. Analysis of legal concepts is worthwhile and is to be distinguished from the

history or sociology of law, as well as from the criticism or appraisal of law.
4. A legal system is a closed logical system in which correct decisions can be
deducted from predetermined legal rules without reference to social
considerations.
5. Moral judgments, unlike statements of fact, cannot be established or defended
by rational argument, evidence or proof.
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Herbert A.L. Hart

Hart liked Austins theory of a sovereign but claimed that Austins Command
Theory failed in several important respects. In the book The Concept of Law,
Hart outlined several key points. Among the many ideas developed in the
book are:
A critique of John Austins theory that the law is the command of the
sovereign enforced by the threat of punishment.
A distinction between the internal and external considerations of laws
and rules, close to (and influenced by) Max Webers distinction
between the legal perspectives of law.
A distinction between primary and secondary legal rules, such that a
primary rule governs conduct, such as criminal law and a secondary
rule governs the procedural methods by which the primary rules are
enforced, prosecuted and so on.
A late reply to Ronald Dworkin, who criticized legal positivism in
general and especially Harts account of law in Taking Rights
Seriously (1977), A Matter of Principle (1985) and Laws Empire
(1986).
Legal Positivism emphasizes the conventional nature of law that it is
socially constructed. Law is synonymous with positive norms, that is,
norms are made by the legislator or considered as common law or case
law. Legal positivism does not base on divine commandments, reason or
human rights. It does not imply an ethical justification for the content of
the law, nor decision for or against the obedience to law. Positivists do not
judge laws by questions of justice or humanity, but merely by the ways in
which the laws have been created. This includes the view that the judges
make new law in deciding or tolerating certain practices of law can each
be considered a way of creating law. John Austin made it abundantly clear
that positive law does not exist in a vacuum simply because of the
separation of the positive law from moral and natural law. It has a
criterion or test of its own, namely the philosophy of legal positivism
which rests on the triune concepts of sovereign, command and sanction.

This means that any violation of the command issued by the supreme
political superior is an infraction thereof and subject to sanction.
28. The Pure Positive Law Response
a. Lousanne Brand
Ernst Roguin sought the purification of positive law on the basis of
creative thinking. He felt very strongly that the answer to the problem
of the validity of the positive law lies in pure juridical science
consistent with the culture of the people.
Frederich Karl von Savigny and Otto von Gierke contended the
application of Roman principles in the different Germanic provinces
was unpardonable insult to German volksgeist. They felt that the civil
laws of the different Germanic provinces had been unduly subjected to
and unnecessarily enlarged by the culture and legal traditions of
another people. German law should be developed on the basis of pure
German culture and traditional legal materials.
James C. Carter published a polemic entitled On the Codification of
our Common Law. Carter utilized a good deal of the arguments of
Savigny and Gierke in opposing the proposed Civil Code of
Substantive Law drafted by David D. Field.
b. Vienna Brand
Hans Kelsen (1881-1953) simply removed the concept of law any
moral implications. Kelsens concept of pure positive law dropped
Austins qualifying adjective immediate and posited the idea that
the concept of law has no moral connotations. The thrust is to
understand the nature of law empirically. That the pure positive
law theory considers only human norms, not norms coming from
other superhuman sources and it does not try to consider law as the
offspring of moral law and natural law human child of a divine
parent.
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Purification of Positive Law

Kelsen explained that the process is simply an inquiry into the
nature of the law as it is. He states that the nature of the law must
be presented empirically, it must stand on its own merit without
make-up of axiological ideas, and that the law must not be
politicized because in the clash of diverse political values it is the
law that is compromised and invariably loses its power as a means
of social control. It is the ideal of juridical positivism to preserve
the theory of positive law from the influence of any political

tendency or which amounts to the same thing from any subjective

judgment of value.
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Normative Legal Order

In this methodology, Kelsen postulates the nature of law of pure
positive as a hierarchy of non-contradictory norms finding their
force, influence and validity on the grand. It means that Law is not
simply a system of coordinated norms of equal level but a
hierarchy of norms of different levels. For example, norms of
moral laws, precepts of the natural law and legal norms. The law is
completely objective for its force, influence and validity no longer
depends on moral law and natural law. Thus, the grandnorm and all
non-contradictory norms emanating therefrom are all valid,
regardless of criticisms based on the natural law and moral law. By
postulating the concept of the hierarchy of different levels of
norms, Kelsen can be said to have succeeded in harmonizing the is
and the ought in his theory of positive law.

Empirical Justice
Kelsen simple showed that any concept of justice with axiological
underpinnings has no place in his philosophy of pure positive law
to evaluate the soundness of the legal norm defining what really is
due to every person. Kelsen was after justice that is real and
possible. Pure positive law theory is Hans Kelsens celebrated
contribution to jurisprudence.

29. The Law and the State

The State is perceived as the creator and enforcer of the law with the power to
inflict evil or pain in case its desires are disregarded according to Thomas
Hobbes and John Austin. It means that no right can be claimed against the
state which it has not previously accepted. In Pure Positive law, the
personification of the state is being avoided by considering the state and the
law as one of the reason that within one nation only one and not two
compelling orders can be valid at the same time.
30. The Supreme Political Superior
The concept of the doctrine of the non-suability of the state stemmed from the
notion that the state as the collective legal association under the rule of
majority is the Supreme Political Superior. But this is not absolute especially
when in the exercise of the power delegated to the government, there is a
deliberate and persistent disregard of the will of the majority, then such
adverse governmental challenge can be blunted, curbed or even denied by the
response of the majority of society.
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Two ways to manifest response of the majority of the members of the Society:

 Peaceable type the electoral response which is periodic and set not
too far apart or too close either.
Uprooting type the revolutionary response. It is not easily provoked.
It arises only in a situation of special difficulty for the people which
arouses them to activity in order to check and contain the excesses in
the exercise by the government powers delegated to it.
The challenge of the government is deliberately ambiguous. 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 evaluation of the
governmental challenge is a matter that addresses itself to the conscience
of the people. The response to the challenge of the government cannot be
applied by a minority for this would plainly be a rebellion.
31. Essential Attributes of the Law
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Conscious Formulation
To accept the exercise of authority, legal positivism substituted rule (Austins
term) as the objective legal rule and norm (Kelsens term) as the objective
legal norm. A specific rule or norm of human conduct must be articulated
before the existence of law of any kind. It would not be a norm or a rule
otherwise. The element of conscious formulation of authority distinguishes an
ordinary rule or norm of positive law to the rule or norm of positive morality.
This sets the legal obligation apart from a moral obligation. In the rule or
norm of positive morality, there is no conscious articulation to lay it down.

Generality
The rule or norm must be general. It is really difficult to lay down particular
rules or norms for each and every particular or specific case because that
would be determinative of specific acts, persons or things.

Authoritative Enforcement
The law involves a duty to obey. It is one of the crucial characteristic of legal
rules or legal norms. Sanctions and/or incentives are provided in order for the
authority to have that coercive competence to enforce the rules or norms
within the limits set by the law. It is the duty of the society to obey the rules
and norms. In the event that the command is disregarded, sanctions will apply
or incentives will be held.

32. Conflict with Historical View

For the Positivist school of jurisprudence there is conflict existing with the
historical view. According to the perspective of legal positivism, the historical
view that the law emanates from the life and spirit of the people is ambiguous.
Taking into consideration the element of time. For the positivists, a legal rule is
created consciously after the concurrence of the act or event in the future.