I.

Introduction to Legal Positivism

A. 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 The basic
question to be asked when talking about this theory is “What is law?” 3 Is it written? Where does
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.
5
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

1
thefreedictionary.com Official Website
2
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
1
 Prior to the American Revolution, English political thinkers John Austin and Thomas
Hobbes articulated the command theory of law, which stood for the proposition that the only
legal authorities that courts should recognize are the commands of the sovereign, because only
the sovereign is entrusted with the power to enforce its commands with military and police
force.9

Thomas Hobbes argued that “it is improbable for any statute to be unjust”. 10 According
to him, “before the names of just and unjust can take place, 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”.11 In this, he meant that “laws are the rules of just and
unjust, nothing being reputed unjust that is not contrary to some law. For Hobbes, 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, when he pleases, free himself from their subjection.”12 What he
stressed is that “to the care of the sovereign belongs the making of good laws.”13 Furthermore, he
concludes that “all that is done by such power is warranted and owned by every one of the
people, and that which every man will have so, no man can say is unjust.”14

John Austin on the other hand, adopted some ideas of Thomas Hobbes in his legal
philosophy about the nature of law.15 Additionally, he was known individually for his “dogma”
of legal positivism which states that16:

The existence of law is one thing; its merit or demerit is another. Whether it be or be not
is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.
A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the
text, by which we regulate our approbation and disapprobation.

9
Ibid.
10
Pascual, Crisolito. “Introdution to Legal Philosophy”. page 171
11
Ibid.
12
Ibid.
13
Pascual, Crisolito. “Introdution to Legal Philosophy”. page 172
14
Ibid.
15
Ibid.
16
Stanford Encyclopedia of Philosophy Official Website
2
Austin defined law by saying that it is the “command of the sovereign”. 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, and “an evil” to be imposed
if that wish is not complied with.
• Rules are general commands (applying generally to a class), as contrasted with specific or
individual commands (“drink wine today” or “John Major must drink wine”).
• Positive law consists of those commands laid down by a sovereign (or its agents), to be
contrasted to other law-givers, like God's general commands, and the general commands of an
employer to an employee.
• The “sovereign” is defined as a person (or determinate body of persons) who receives habitual
obedience from the bulk of the population, but who does not habitually obey any other
(earthly) person or institution. Austin thought that all independent political societies, by their
nature, have a sovereign.
• Positive law should also be contrasted with “laws by a close analogy” (which includes
positive morality, laws of honor, international law, customary law, and constitutional law) and
“laws by remote analogy” (e.g., the laws of physics).

Another famous advocate of legal positivism in America’s history is probably Justice

Oliver Wendell Holmes, Jr. He wrote that the "prophecies of what the courts will do in fact, and
nothing more pretentious, are what I mean by the law".18 Holmes made a description of what
positive law is in the realm of the courts. In making this statement, Holmes was suggesting that
the meaning of any written law is determined by the individual judges interpreting them, and
until a judge has weighed in on a legal issue, the law is ultimately little more than an exercise in
trying to guess the way a judge will rule in a case.19

II. Approaches to Legal Positivism

According to John Austin, “the existence of the law is one thing its merit or demerit is
another. Whether it be or be not is one enquiry; whether it be or be not conformable to an
17
Ibid.
18
Legal Positivism - Further Readings at Law.Jrank.Org Official Website
19
Ibid.
3
assumed standard, is another enquiry.”20

The positivists do not say that the law’s merits are unintelligible, unimportant, or
peripheral to the philosophy of law. However, the merits of law do not determine whether a law
or a legal system indeed exists. The existence of a legal system in a society can be inferred from
the different structures of governance present, and not on the extent to which it satisfies ideals of
justice, democracy, or rule of law. The laws which are in force in a certain system depends on
what kind of social standards its officials recognize as authoritative. They may be legislative
enactments, judicial decisions, or social customs. The fact that a policy is just, wise, efficient, or
prudent is never a sufficient reason for thinking that it is actually the law; and the fact that it is
unjust, unwise, inefficient or imprudent is never a sufficient reason for doubting it. According to
positivism, law is a matter of what has been posited.

There are many versions or interpretations of legal positivism. But perhaps, the most
popular version or interpretation would be that of the Separation Thesis. According to Hart, a
contemporary legal positivist, separation thesis is the essence of legal positivism.21 The main
point or essence of this thesis is that, the law and morality are conceptually distinct.

In order to know what your legal rights are, you need to look at what laws your society
has. In order to know what your moral rights are, you need to figure out what is the true morality.
It is possible for a person to have legal rights that the true morality says he should not have, and
the society might also deny a person’s legal rights that the true morality dictates one must have.22

However, there some conflicting views on whether there are possible legal systems with
such constraints. In inclusive positivism or also known as incorporationism or soft positivism, it
is possible for a society’s rule of recognition to incorporate moral constraints on the content of
law. Contrary to this is the exclusive positivism or also called as the hard positivism, in which it
denies that a legal system can incorporate moral constraints on legal validity. Some exclusive
positivists subscribe to the Source Thesis. According to this, the existence and content of law can
always be determined by reference to its sources without recourse to moral arguments.23
20
Stanford Encyclopdia of Philosophy Official Website
21
http://web.nmsu.edu/~dscoccia/376web/376lpaust.pdf
22
Ibid.
23
Stanford Encyclopedia of Philosophy Official Website
4
 Going back to Austin’s legal positivism as explained by the separation thesis, according
to some people who have given interpretation to this, based on the essence of the thesis, the law
must be entirely free of moral notions. However, the very fact that Austin thinks that the specific
content of the law considers not only an inquiry into its existence, but also a separate inquiry into
its merit or demerit, implies that the laws can, and do at least sometimes, reproduce or satisfy
certain demands of morality.24

Herbert Hart, a legal philosopher agrees with Austin. 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. In addition to this, he also said that Austin
did not imply that positive law is non-moral. 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.25

III. THE LAW AND THE STATE/THE SUPREME POLITICAL SUPERIOR

In Thomas Hobbes’ and John Austin’s legal positivism, the state is perceived as the
creator and enforcer of the law who is therefore, vested with the power to “inflict an evil or pain
in case its desire is disregarded”. Therefore, the law is the expression of the will of the state
laying down the rules of action upheld by force. But this does not mean that the state can do no
wrong in the expression and enforcement of its will, however, even if a wrong is done by the
state, no right can be claimed against it.26

From the concept of law of the positivists, the supreme political superior is the state, as a
collective legal association under the rule of the majority. The legal doctrine of non-suability was
derived from this concept.27

But it must be remembered that the exercise of the will of the supreme political superior
by the government is not absolute. When there is a deliberate and unrelenting disregard of the
24
Ibid.
25
Pascual, Crisolito. “Introduction to Legal Philosophy”. page 174
26
Pascual, Crisolito. “Introduction to Legal Philosophy”. pages 186-187
27
Ibid. page 187
5
will of the supreme political superior in the exercise of governmental powers, the majority
members of the society may blunt, curb, or even deny by response the adverse governmental
challenges. 28

There are two ways of manifesting the popular response of the people. One is by an
electoral response, which is a peaceable type. Electoral response is set not too far apart nor too
close to each other. The second type is the revolutionary response, which is an uprooting type.
The second type is not easily provoked. 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. Depending on the intensity or graveness of the governmental challenge,
the people may decide to resort to this response or not. 29

When the challenge is only minimal, 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. But when the challenge reaches its maximum intensity or the challenge of the
government has assumed such tremendous proportions, the capacity of the people to respond has
been stifled. In this kind of situation, only with outside assistance or intervention may the will
and power to resist be bargained. But if the governmental challenge is at its optimum intensity,
the people may already act effectively, so as not to allow the governmental challenge to succeed
and reach its maximum intensity. 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. However, there are some factors that can serve as a guide.
The governmental challenge’s evaluation is a matter that addresses itself to the conscience of the
people. Therefore, the revolutionary response depends on the combination of the conditions that
produce or promise the best average result for the people. 31

IV. COMMAND THEORY OF LAW

28
Ibid. page 188
29
Ibid. page 188
30
Ibid. page188
31
Ibid. page 189
6
 Austin’s particular theory of law is often called the “command theory of law” because the
concept of command lies at its core. Positive law has a criterion of its own, namely, the
philosophy of legal positivism, which rests on the triune concepts of sovereign, command, and
sanction. 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. 32

Illustration33:

V. KELSEN’S PURE POSITIVE LAW

Hans Kelsen, an Austrian jurist and philosopher, reiterated Austin’s idea that “the concept
of law has no moral connotations whatsoever.”34 During the 20th century, Kelsen claimed that at
that time, the traditional legal philosophies were hopelessly contaminated with political ideology
and moralizing.35 Hence, Kelsen propounded the idea of a Pure Theory of Law, which is a theory
of Positive Law. It is a general theory of law, not an interpretation of specific national or
international legal norms; but it offers a theory of interpretation.36 It is characterized as a “pure”
theory of law because it aims to focus on law alone.37 It only describes the law and it also
attempts to eliminate or set aside anything that is not law. Its aim is to free the science of law
from alien elements. Kelsen wanted to show his pure concept of positive law by eliminating any

32
Pascual, Crisolito. “Introduction to Legal Philosophy“. page 174
33
Hubin, Don. “Classical Legal Positivism”
34
Pascual, Crisolito. “Introduction to Legal Philosophy”. page 177
35
Stanford Encyclopedia of Philosophy Official Website
36
Kelsen, Hans. “Pure Theory of Law”. page 1
37
Stanford Encyclopedia of Philosophy Official Website
7
significance of the norms of moral law to positive law.38 According to Kelsen, “the law is simply
not pure when cluttered with axiological norms.” 39

The law according to Kelsen is a system of norms. He maintained that legal norms are
created by acts of will or in other words, products of deliberate human action, as opposed to
moral norms which is by God.40 In relation to this, the pure law theory takes only into
consideration only the norms created by the acts of human beings, not norms which come from
other superhuman authorities.41

VI. NORMATIVE LEGAL ORDER

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.” For if the law were a system of
coordinated norms which are of equal level only (norms of moral law, precept of natural law,
legal norms), 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, there is such as thing as a grand unchallengeable norm, or simply

the grand norm, which is “not a product of free invention nor is it presupposed arbitrarily.” This
grand norm came from the collective will, competence, and capacity of the people.42 Kelsen used
this term to denote the basic norm, order, or rule that forms an underlying basis for a legal
system. Kelsen came up with this because there is a need to find a point of origin for all law, on
which the basic law and constitution can gain their legitimacy from.43 In other words, the grand
norm no longer depends on the moral law or natural law for its validity. Thus, all the legal norms
coming or emanating from this are all valid even if there are criticisms made based on moral or
natural law.44

38
Kelsen, Hans. “Pure Theory of Law”. page 1
39
Pascual, Crisolito. “Introduction to Legal Philosophy”. page 178
40
Stanford Encycolpedia of Philosophy Official Website
41
Pascual, Crisolito. “Introduction to Legal Philosophy”. page 179
42
Pascual, Crisolito. “Introduction to Legal Philosophy.” page 181
43
Wikipedia, the free encyclopedia
44
Pascual, Crisolito. “Introduction to Legal Philosophy.” page 181
8
 The pure positive law theory also distinguishes the “is-statement” from the “ought-
statement.” The “is-statement” that something is, or something is not done is expressive of a
simple reason for action. As for the “ought-statement” that something should be, or something
should be done, or something should not be done is expressive of a higher kind of reason for
action. It is a tense indicative of a conscientious desire to discharge and obligation.45

For illustration purposes, here is an example:

Why should the people pay taxes on time? As stated above, there are two ways or reasons
for complying with the legal norm of paying taxes, specifically the “is-statement” and the
“ought-statement.”

One may answer that he needs to pay his taxes so that he will not be caught in a situation
with unpleasant consequences, which can mean that he would not pay at all if he can get away
with it. In this type of situation, the purpose of the person in paying his taxes is to avoid criminal
prosecution. 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. In this example, the normativeness of the
legal norm has evaporated.46

Another way on answering or reasoning is to discharge a conscientious obligation.

According to Kelsen, an answer applying the ought-statement to the question why people should
pay their taxes on time is the correct one. An example answer would be, the people should pay
their taxes on time because the legal norm should be observed or obeyed. In this example, there
is a higher justification for action, which is to discharge o conscientious obligation without any
thought of getting away from it.47

Thus, in the normative legal order, the jussiveness of a legal order preserved and its
functions are clarified as well. First function is the prescriptive, which ordains a person to give,
to do or not to do something. An example of this would be trespass to dwelling which is
prohibited as written in the Revised Penal Code. The other is the authoritative function which
delegates to the people the power to issue rules and regulations to implement a legal norm. An

45
Ibid. pages 181-182
46
Pascual, Crisolito. “Introduction to Legal Philosophy”. page 182
47
Ibid.
9
example for this type of function would be the issuance of administrative rules which would
need the force of society to back it up. Lastly, the permissive function which allows a person to
give, to do or not to do something. Self-defense would fall under this, the legal norm should
provide for an exemption from any sanction that may be attached to it.48

The acts of the different branches of the government are considered as measures of
coercion. Sanctions and incentives are attached to a legal norm. This is what distinguishes a legal
norm from other social norms. If the law is not considered as positive or jussive, then it becomes
the same or similar with the other social norms. 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, authorized, or permitted by the legal norm. There is no need for further
deliberation amongst the members of the society. They should observe and obey the legal norms,
if not, they must suffer the consequences. These norms of conduct bring about peace and order
within the society. This may have been the best defense yet for the positivist theory of the
conceptual independence of law from moral and natural laws.49

VII. Essential Attributes of the Law

The law has three essential attributes, namely, the conscious formulation, generality, and
authoritativeness.

As a conscious exercise of authority, the rule or norm is different or separate from morals.
A specific rule or norm of human conduct must be articulated before there would be an actual
law of any kind. Conscious formulation as an element, distinguishes a rule or norm of positive
law from a rule or norm of morality. In the case of morality, there is no conscious articulation to
lay it down as such. There is no cause of action to enforce performance of it. However, when
they are voluntarily done they cannot be undone anymore even on the allegation that their
performance was without legal consideration. An example of a moral obligation are the
obligations provided in Article 1423 of the Civil Code of the Philippines.50

48
Ibid.
49
Ibid.
50
Pascual, Crisolito, “Introduction to Legal Philosophy”. page 190
10
 The next attribute is known as generality. A rule or norm should not be in the particular
form for that would determine only specific acts, persons, or properties. Rules or norms should
be in general, or in other words, it must prescribe courses of conduct for all members of a society
or for all members of a class.51

The last attribute is the authoritative enforcement. When a rule or norm is backed by the
authority of the state, it involves or entails with it a duty to obey. This is the crucial characteristic
of legal rules or legal norms. It is because of this attribute that sanctions or incentives are
provided, giving the people in authority the coercive competence to enforce the rules or norms
within the limits set by law. A sanction is any eventual evil annexed to the rule or norm and may
take the form of some punishment, specific, or substituted redress, or enforced prevention. This
is the element that makes the law imperative and jussive, or making it not merely hortatory or
advisory. 52

VIII. Positive Law vs. Natural Law53

Natural law is law that already exists and is waiting to be discovered. 54 It refers to the standard of
conduct that transcends human authority.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. Positive
law is law made by man. It is a system of rules established by the governmental power of a state. Positive
law can be based upon natural law, but generally this view of law is opposed to the classical
understanding of natural law.

Legal positivism is the view that law is fully defined by its existence as man-made law. Function
of positive law is to define the natural law and make it explicit; to make it effective thru sanctions.

The positivist approach has a recurring problem of the separation of law from moral law and
natural law.

The positivists criticize the idea that natural laws are inherent in the concept of law. John Austin
advocated the separation of law and morals.
51
Ibid.
52
Ibid. pages 190-191
53
Pascual, Crisolito, “Introduction to Legal Philosophy”.
54
www.americanlaw.edu
55
www.studywell.org
11
 “ 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.”

John Austin emphasized that law is not directly related or has no “immediate concern” to natural
or moral law. Law is not necessarily a moral concept and moral considerations do not necessarily precede
law. Whatever their relation may be is only mere accidental and not immediate.

In the legal positivists point of view, the body of legal rules should exist without conscious regard
for the norms of morality, although the latter’s influence are not completely denied. There are legal rules
that do not measure up to moral law but do not cease to be legal rules.

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).Legal positivists do not believe in natural law in the legal ordering of society because natural law
is not common to everybody. There are conflicting precepts of natural law making it difficult to establish
which is right and which is wrong. It is better if the concept of law is free from metaphysical speculation.

IX. Conflict with Historical View56

The positivists view the law as simply the conscious creation of supreme political superior, a
man-made set of rules established and enforced by the state. In its perspective, the historical view that the
law emanates from life and spirit is ambiguous.

A rule cannot be made before the occurrence of the facts it purports to regulate or govern. In the
positivists view, the act has to happen before a rule can be made precisely to govern it.

To understand the conflict between the historical view and the positivists view, rules were traced
back in its simple beginnings. Rules back then were not established but were followed as they are now.
There is no much conflict at all. How people settled injuries or liabilities to others were quite similar to
the present days.

56
Ibid.
12
 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. Every modern rule has its own beginning, the issue
of conflict of positivists view and historical view is not as real as it was thought.

X. Critique of Legal Positivism57

The most influential criticisms of legal positivism all flow from the suspicion that it fails to give
morality its due. The law has important functions in creating harmony and peace in our lives, advancing
the common good, in securing human rights, or to govern with integrity and yet it has no relevance with
our morals.

A. Lon Fuller

Fuller denies the separation of law and morality. He believes that whatever virtues inherent in or
follow from clear, consistent, prospective, and open practices can be found not only in law but in all other
social practices with those features, including custom and positive morality.

His other criticism is that if law is a matter of fact then we are without an explanation of the duty
to obey. If an amoral law is made, there is still an obligation to obey.

B. Ronald Dworkin

Dworkin denies that there can be any general theory of the existence and content of law; he
denies that local theories of particular legal systems can identify law without recourse to its merits, 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, not with an account of political organization, but with an abstract ideal
regulating the conditions under which governments may use coercive force over their subjects. A society
has a legal system only when, and to the extent that, it honors this ideal, and its law is the set of all
considerations that the courts of such a society would be morally justified in applying, whether or not
those considerations are determined by any source.

57
Stanford Encyclopedia of Philosophy

13
 BIBLIOGRAPHY

1) Atheism.About Official Website -

http://atheism.about.com/library/glossary/political/bldef_legalpositivism.htm
2) Business Dictionary Official Website -http:
//www.businessdictionary.com/definition/legal-positivism.html

3) Kelsen, Hans. “Pure Theory of Law”.

4) http://web.nmsu.edu/~dscoccia/376web/376lpaust.pdf

5) Hubin, Don. “Classical Legal Positivism”

6) Stanford Encyclopedia of Philosophy Official Website - http://plato.stanford.edu

14
7) Legal Positivism - Further Readings at Law.Jrank.Org Official Website -
http://law.jrank.org/pages/8154/Legal-Positivism.html

8) Pascual, Crisolito. “Introdution to Legal Philosophy”.Premium Printing Press.

Manila:1994

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dictionary.thefreedictionary.com/Legal+Positivism

10) Wikipedia, the free encyclopedia

11) www.shsu.edu

12)www.studywell.org

San Beda College-College of Law

Mendiola, Manila

LEGAL POSITIVISM

In partial fulfillment of the requirements in Legal Philosophy

15
 Presented by:
Issa Andaya- 1-G
Avril Gamboa – 1-G
Kate Punzalan – 1-I

Presented to:
Atty. Dacanay

November 22, 2008

16