PHILOSOPHY OF LAW

PREPARED BY: MR. JERSON G. MADRONA

LEGAL PHILOSOHY: THE POSITIVIST APPROACH
THE POSITIVIST APPROACH
-

In dealing with mature legal

system, the positivist school of
jurisprudence,
which
Austin
developed, uses the method of
comparative analysis.
The
label
positivist
jurisprudence: is preferable. It
emphasizes the perception of
this
particular
school
of
jurisprudence that the law is
consciously created by the
state. As such, the law is
positive, that is to say posited
by the authority of the state.

Two important points underlying

the positivist approach to the
problem of the nature of the law.
Both are refers to the separation of
moral law and from natural law.
1. LAW NOT NECESSARILY A MORAL
CONCEPT: The legal positivist are
persuaded that the legal order can
exist without conscious regard for
the norms of morality (AUSTIN
CONCEPT)
for
Austin,
the
relationship between law and
morality is only accidental, not
direct.
2.
UNCLUTTERED
BY
METAPHYSICAL
SPECULATIONS:
The second characteristic of the
positivist approach to the problem
of the nature of the law is that is
views the issue by way of the
empirical sphere of reality, rather
than the transcendental sphere of
the ideal.
The legal positivist do not hide
their disillusionment with the use of

natural law theory in the legal

ordering of society.
What the precepts of the natural
law mean matters of personal
understanding
and
even
discrimination.
There are conflicting notions about
what the precepts of the natural
law precisely mean making it vey
difficult to accept which one is
correct and to accept all would
simply be self-deception.
HOBBES AUSTIN CONCEPT
-

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.
Laws are rules of just and
unjust, nothing being reputed
unjust that is not contrary to
some law.
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.

AUSTIN CONCEPT
-

That positive law is void if it is

not in accordance with the
natural law. (Commentaries on
the Laws of England)
Austin
strongly
felt
that
blackstone erred because he
failed to distinguish the issue of
conformity of positive law to the
precepts of natural law from the

PHILOSOPHY OF LAW
PREPARED BY: MR. JERSON G. MADRONA
LEGAL PHILOSOHY: THE POSITIVIST APPROACH

question of validity of positive

law.
Austin
aversion
to
the
philosophy of the natural law is
based on the view that the
ought is really non-existent. The
actualization or realization of
that which ought to be results
only in its own cancellation.

- Cairns however explained that

one can argue that positive law
must conform to moral law and
natural law but to say that
positive law is null and void
simply because it is contrary to
moral law and natural law is
foolish and absurd.
- Positive law has acriterion or
test of its own, namely, the
philosophy of legal positivism
which rest on the triune
concepts
of
sovereign,
command and sanction.

LEGAL POSITIVISM
-

Austin insists, even though

impatiently and rigidly, that
there is a clear-cut distinction
between law and morals and
between law and natural law, as
follows:
-the confusion of them
under a common name
and
the
consequent
tendency to confound
law and morals and law
and natural law is one
prolific source of jargon,
darkness and perplexity.
By a careful analysis of
leading terms, law is
detached from morals
and natural law, and the
attention of the students
of
jurisprudence
is
confined
to
the
distinction and division
which relate to law
exclusively.
- Hart however, pointed out that
Austin did not say that the
norms of moral law and the
precepts of natural law have no
influence on positive law.

THE PURE POSITIVE LAW RESPONSE

-

Positivist jurisprudents insist

that nothing is immoral or
amoral that is legal.
Following
the
intellectual
movement away from roman
law principles which frederich
karl von savigny started, sought
the purification of positive law
by means of creative thinking
on the basis of the peoples
culture and tradition.
However, Hans kelsen pure
positive law theory is to
understand the nature of the
law empirically. He explains that
the pure positive law theory
considers only human norms,
not norms coming from other
human sources and that it
does not try to consider the law
as the offspring of moral law
and natural law as a child of a
divine parent.

PURIFICATION OF POSITIVE LAW

-

Hans kelsen states that the

nature of the law must be

PHILOSOPHY OF LAW
PREPARED BY: MR. JERSON G. MADRONA
LEGAL PHILOSOHY: THE POSITIVIST APPROACH
presented empirically, that is to
say 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 invariability
loses its power as a means of
social control.

allowing a persons to give, to do

or not to do something: ex;
trespass to dwelling .
EMPIRICAL JUSTICE
-

NORMATIVE LEAGL ORDER

-

Hans kelsen postulates the

nature of pure positive law as a
hierarchy of non-contradictory
norms
finding
their
force,
influence and validity on the
grand challengeable norm.
This means that the nature of
law is not simply a system of
coordinated norms of equal
level but hierarchy of norms of
different level.
The grandnorm is conceived by
the collective will, capacity and
competence of the people free
from axiological ideas.
The law then is completely
objective because its force,
influence and validity no longer
depends on moral and natural
law.
Thus, in the normative legal
order, the jussiveness of a legal
norm is not only preserved but
its functions are also clarified:
namely; prescriptive function
ordering the persons to give, to
do or not to do something; the
authoritative
function
delegating to persons the power
to issue rules and regulations
implementing some prior legal
norm; the permissive function

Kelsen was after justice that is

real and possible. And, in
relation to the legal ordering of
society, justice is real and
possible when it is appropriate
to the evil which society has a
right to avoid in the first place.

THE LAW AND THE STATE

-

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.
This does not mean that the
state can do no wrong in the
expression of its will. It only
means that no right can be
claimed against the state which
has not previously accepted.

THE SUPREME POLITICAL SUPERIOR

-

The state as the collective

leagal association under the
rule of majority is the supreme
political superior.
But the exercise of the will of
the supreme political superior
by the government is not
absolute.
The
response
may
be
manifested in either of two
ways. The first is the peaceable
type- the electoral response
which is periodic and set not too
far apart nor too close either.
The other is the uprooting typethe revolutionary response is
not easily provoked. It can be

PHILOSOPHY OF LAW
PREPARED BY: MR. JERSON G. MADRONA
LEGAL PHILOSOHY: THE POSITIVIST APPROACH
stifled depending on the people
themselves.
ESSENTIAL
LAW

ATTRIBUTES

OF

THE

A. CONSCIOUS FORMULATION
- As a conscious exercise of
authority, the rule or norm is separate
from morals. A specific rule or norm of
human conduct must be articulated
before there can be law of any kind. It
would hardly be a rule or norm if it
were otherwise.

- Obedience to the rules or

norms is required because it is the
duty to obey that survives the
command implicit in the rule or norm.
CONFLICT WITH HISTORICAL VIEW
-

B. GENERALITY
- The rule or norm must not be
in the particular form for that would be
determinative only of specific acts,
persons or things. The rule or norm
must be general, that is to say it must
prescribe courses of conduct for all
members of society or for all in a
particular class.
C.
ENFORCEMENT

involves a duty to obey. This is the

crucial characteristic of legal rules or
legal norms. To that end, sanctions
and/or incentives are provided, giving
those in authority the coercive
competence to enforce the rules or
norms within the limits set by law.

AUTHORITATIVE

- As a rule or norm backed by

the authority of the state, the law

For
the
positivist
school,
customs and customary modes
of decisions are a typical
examples of positive law. For
the positivist, the law is simply
the conscious creation of the
supreme political superior.
From the perspective of legal
positivism, the historical view
that the law emanates from the
life and spirit of the people is
ambiguous, especially when the
element of the time is taken
into consideration.