Вы находитесь на странице: 1из 7

Legal Positivism What he stressed is that “to the care of the sovereign belongs the making of good laws.

Furthermore, he concludes that “all that is done by such power is warranted and owned by
I. Introduction to Legal Positivism every one of the people, and that which every man will have so, no man can say is unjust.”
A. Definition John Austin on the other hand, adopted some ideas of Thomas Hobbes in his legal philosophy
Positivism is from the Latin root positus, which means to posit, postulate, or firmly affix the about the nature of law. Additionally, he was known individually for his “dogma” of legal
existence of something. Legal positivism is a school of jurisprudence whose advocates positivism which states that:
believe that the only legitimate sources of law are those written rules, regulations, and The existence of law is one thing; its merit or demerit is another. Whether it be or be not is
principles that have been expressly enacted, adopted, or recognized by a governmental entity one enquiry; whether it be or be not conformable to an assumed standard, is a different
or political institution, including administrative, executive, legislative, and judicial bodies. enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it
The basic question to be asked when talking about this theory is “What is law?” Is it written? vary from the text, by which we regulate our approbation and disapprobation.
Where does it come from? Legal positivism is a theory which answers these questions.
Austin defined law by saying that it is the “command of the sovereign”. He expounds on this
Legal positivism is the legal philosophy which argues that any and all laws are nothing more further by identifying the elements of the definition and distinguishing law from other
and nothing less than simply the expression of the will of whatever authority created them. concepts that are similar:
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 “Commands” involve an expressed wish that something be done, and “an evil” to be imposed
construction. The creation of laws is simply an exercise in brute force and an expression of if that wish is not complied with.
power, not an attempt to realize any loftier moral or social goals. Therefore, from a positivist
perspective, it can be said that “legal rules or laws are valid not because they are rooted in Rules are general commands (applying generally to a class), as contrasted with specific or
moral or natural law, but because they are enacted by legitimate authority and are accepted by individual commands (“drink wine today” or “John Major must drink wine”).
the society as such”. 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.
B. History of Legal Positivism and its Proponents
The “sovereign” is defined as a person (or determinate body of persons) who receives
Legal positivism has ancient roots. Christians believe that the Ten Commandments have habitual obedience from the bulk of the population, but who does not habitually obey any
sacred and pre-eminent value in part because they were inscribed in stone by God, and other (earthly) person or institution. Austin thought that all independent political societies, by
delivered to Moses on Mount Sinai. When the ancient Greeks intended for a new law to have their nature, have a sovereign.
permanent validity, they inscribed it on stone or wood and displayed it in a public place for Positive law should also be contrasted with “laws by a close analogy” (which includes
all to see. In classical Rome, Emperor Justinian (483-565 A.D.) developed an elaborate positive morality, laws of honor, international law, customary law, and constitutional law)
system of law that was contained in a detailed and voluminous written code. and “laws by remote analogy” (e.g., the laws of physics).
Prior to the American Revolution, English political thinkers John Austin and Thomas Hobbes Another famous advocate of legal positivism in America’s history is probably Justice Oliver
articulated the command theory of law, which stood for the proposition that the only legal Wendell Holmes, Jr. He wrote that the "prophecies of what the courts will do in fact, and
authorities that courts should recognize are the commands of the sovereign, because only the nothing more pretentious, are what I mean by the law". Holmes made a description of what
sovereign is entrusted with the power to enforce its commands with military and police force. positive law is in the realm of the courts. In making this statement, Holmes was suggesting
Thomas Hobbes argued that “it is improbable for any statute to be unjust”. According to him, that the meaning of any written law is determined by the individual judges interpreting them,
“before the names of just and unjust can take place, there must be some coercive power to and until a judge has weighed in on a legal issue, the law is ultimately little more than an
compel men equally to the performance of their covenants … and such power there is none exercise in trying to guess the way a judge will rule in a case.
before the creation of the commonwealth”. 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 II. Approaches to Legal Positivism
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.”
According to John Austin, “the existence of the law is one thing its merit or demerit is Austin did not imply that positive law is non-moral. A person may argue that positive law
another. Whether it be or be not is one enquiry; whether it be or be not conformable to an must conform to moral and natural law but to say that positive law is null and void simply
assumed standard, is another enquiry.” because it is conflicting with the moral and natural law is foolish and absurd.
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 III. THE LAW AND THE STATE/THE SUPREME POLITICAL SUPERIOR
legal system indeed exists. The existence of a legal system in a society can be inferred from In Thomas Hobbes’ and John Austin’s legal positivism, the state is perceived as the creator
the different structures of governance present, and not on the extent to which it satisfies ideals and enforcer of the law who is therefore, vested with the power to “inflict an evil or pain in
of justice, democracy, or rule of law. The laws which are in force in a certain system depends case its desire is disregarded”. Therefore, the law is the expression of the will of the state
on what kind of social standards its officials recognize as authoritative. They may be laying down the rules of action upheld by force. But this does not mean that the state can do
legislative enactments, judicial decisions, or social customs. The fact that a policy is just, no wrong in the expression and enforcement of its will, however, even if a wrong is done by
wise, efficient, or prudent is never a sufficient reason for thinking that it is actually the law; the state, no right can be claimed against it.
and the fact that it is unjust, unwise, inefficient or imprudent is never a sufficient reason for From the concept of law of the positivists, the supreme political superior is the state, as a
doubting it. According to positivism, law is a matter of what has been posited. collective legal association under the rule of the majority. The legal doctrine of non-suability
There are many versions or interpretations of legal positivism. But perhaps, the most popular was derived from this concept.
version or interpretation would be that of the Separation Thesis. According to Hart, a But it must be remembered that the exercise of the will of the supreme political superior by
contemporary legal positivist, separation thesis is the essence of legal positivism. The main the government is not absolute. When there is a deliberate and unrelenting disregard of the
point or essence of this thesis is that, the law and morality are conceptually distinct. will of the supreme political superior in the exercise of governmental powers, the majority
In order to know what your legal rights are, you need to look at what laws your society has. members of the society may blunt, curb, or even deny by response the adverse governmental
In order to know what your moral rights are, you need to figure out what is the true morality. challenges.
It is possible for a person to have legal rights that the true morality says he should not have, There are two ways of manifesting the popular response of the people. One is by an electoral
and the society might also deny a person’s legal rights that the true morality dictates one must response, which is a peaceable type. Electoral response is set not too far apart nor too close to
have. each other. The second type is the revolutionary response, which is an uprooting type. The
However, there some conflicting views on whether there are possible legal systems with such second type is not easily provoked. It happens or arises only in situations or circumstances in
constraints. In inclusive positivism or also known as incorporationism or soft positivism, it is which the people are having special difficulty and arouses them to engage in this kind of
possible for a society’s rule of recognition to incorporate moral constraints on the content of response in order to check and contain the excesses in the exercise by the government of the
law. Contrary to this is the exclusive positivism or also called as the hard positivism, in which powers delegated to it. Depending on the intensity or graveness of the governmental
it denies that a legal system can incorporate moral constraints on legal validity. Some challenge, the people may decide to resort to this response or not.
exclusive positivists subscribe to the Source Thesis. According to this, the existence and When the challenge is only minimal, most probably it will just be ignored by the people since
content of law can always be determined by reference to its sources without recourse to moral it is not enough to make an impression or not enough to excite or arouse their collective sense
arguments. of antipathy. But when the challenge reaches its maximum intensity or the challenge of the
Going back to Austin’s legal positivism as explained by the separation thesis, according to government has assumed such tremendous proportions, the capacity of the people to respond
some people who have given interpretation to this, based on the essence of the thesis, the law has been stifled. In this kind of situation, only with outside assistance or intervention may the
must be entirely free of moral notions. However, the very fact that Austin thinks that the will and power to resist be bargained. But if the governmental challenge is at its optimum
specific content of the law considers not only an inquiry into its existence, but also a separate intensity, the people may already act effectively, so as not to allow the governmental
inquiry into its merit or demerit, implies that the laws can, and do at least sometimes, challenge to succeed and reach its maximum intensity.
reproduce or satisfy certain demands of morality. There is no hard and fast rule that can be laid down with which to measure the intensity of the
Herbert Hart, a legal philosopher agrees with Austin. He explained that Austin did not challenge of the government. However, there are some factors that can serve as a guide. The
actually say that the norms of moral law and the precepts of the natural law did not have any governmental challenge’s evaluation is a matter that addresses itself to the conscience of the
influence in the promulgation of rules and regulations. In addition to this, he also said that
people. Therefore, the revolutionary response depends on the combination of the conditions grand norm came from the collective will, competence, and capacity of the people. Kelsen
that produce or promise the best average result for the people. 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
IV. COMMAND THEORY OF LAW law, on which the basic law and constitution can gain their legitimacy from. In other words,
the grand norm no longer depends on the moral law or natural law for its validity. Thus, all
Austin’s particular theory of law is often called the “command theory of law” because the the legal norms coming or emanating from this are all valid even if there are criticisms made
concept of command lies at its core. Positive law has a criterion of its own, namely, the based on moral or natural law.
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 The pure positive law theory also distinguishes the “is-statement” from the “ought-
political superior or the sovereign is an infraction thereof and subject to sanction. 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
Illustration: 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.
V. KELSEN’S PURE POSITIVE LAW 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
Hans Kelsen, an Austrian jurist and philosopher, reiterated Austin’s idea that “the concept of
complying with the legal norm of paying taxes, specifically the “is-statement” and the
law has no moral connotations whatsoever.” During the 20th century, Kelsen claimed that at “ought-statement.”
that time, the traditional legal philosophies were hopelessly contaminated with political
ideology and moralizing. Hence, Kelsen propounded the idea of a Pure Theory of Law, which One may answer that he needs to pay his taxes so that he will not be caught in a situation with
is a theory of Positive Law. It is a general theory of law, not an interpretation of specific unpleasant consequences, which can mean that he would not pay at all if he can get away
national or international legal norms; but it offers a theory of interpretation. It is characterized with it. In this type of situation, the purpose of the person in paying his taxes is to avoid
as a “pure” theory of law because it aims to focus on law alone. It only describes the law and criminal prosecution. The response of the person that he pays his taxes on time because the
it also attempts to eliminate or set aside anything that is not law. Its aim is to free the science legal norm commands him to do it is obviously an is-statement. In this example, the
of law from alien elements. Kelsen wanted to show his pure concept of positive law by normativeness of the legal norm has evaporated.
eliminating any significance of the norms of moral law to positive law. According to Kelsen, Another way on answering or reasoning is to discharge a conscientious obligation. According
“the law is simply not pure when cluttered with axiological norms.” 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
The law according to Kelsen is a system of norms. He maintained that legal norms are created
their taxes on time because the legal norm should be observed or obeyed. In this example,
by acts of will or in other words, products of deliberate human action, as opposed to moral
there is a higher justification for action, which is to discharge o conscientious obligation
norms which is by God. In relation to this, the pure law theory takes only into consideration
without any thought of getting away from it.
only the norms created by the acts of human beings, not norms which come from other
Thus, in the normative legal order, the jussiveness of a legal order preserved and its functions
superhuman authorities.
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
VI. NORMATIVE LEGAL ORDER written in the Revised Penal Code. The other is the authoritative function which delegates to
According to Kelsen, the nature of the law “is not simply a system of coordinated norms of the people the power to issue rules and regulations to implement a legal norm. An example
equal level but a hierarchy of legal norms of different level.” For if the law were a system of for this type of function would be the issuance of administrative rules which would need the
coordinated norms which are of equal level only (norms of moral law, precept of natural law, force of society to back it up. Lastly, the permissive function which allows a person to give,
legal norms), then legal norms would not be positive or jussive and would be a problem in to do or not to do something. Self-defense would fall under this, the legal norm should
setting a guide to the legal ordering of the society. provide for an exemption from any sanction that may be attached to it.

According to Kelsen, there is such as thing as a grand unchallengeable norm, or simply the The acts of the different branches of the government are considered as measures of coercion.
grand norm, which is “not a product of free invention nor is it presupposed arbitrarily.” This 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 Legal positivism is the view that law is fully defined by its existence as man-made law.
characteristic of the law that the members of the society are obliged to conduct themselves in Function of positive law is to define the natural law and make it explicit; to make it effective
the manner prescribed, authorized, or permitted by the legal norm. There is no need for thru sanctions.
further deliberation amongst the members of the society. They should observe and obey the The positivist approach has a recurring problem of the separation of law from moral law and
legal norms, if not, they must suffer the consequences. These norms of conduct bring about natural law.
peace and order within the society. This may have been the best defense yet for the positivist The positivists criticize the idea that natural laws are inherent in the concept of law. John
theory of the conceptual independence of law from moral and natural laws. Austin advocated the separation of law and morals.
“ With the goodness or badness of law as tried by the test of utility or by any of the various
VII. Essential Attributes of the Law 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
The law has three essential attributes, namely, the conscious formulation, generality, and natural or moral law. Law is not necessarily a moral concept and moral considerations do not
authoritativeness. necessarily precede law. Whatever their relation may be is only mere accidental and not
As a conscious exercise of authority, the rule or norm is different or separate from morals. A immediate.
specific rule or norm of human conduct must be articulated before there would be an actual In the legal positivists point of view, the body of legal rules should exist without conscious
law of any kind. Conscious formulation as an element, distinguishes a rule or norm of regard for the norms of morality, although the latter’s influence are not completely denied.
positive law from a rule or norm of morality. In the case of morality, there is no conscious There are legal rules that do not measure up to moral law but do not cease to be legal rules.
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 Another problem of the positivist approach with regard to the nature of law is that it deals
allegation that their performance was without legal consideration. An example of a moral with the empirical sphere of reality ( that is ) rather than the transcendental sphere of the ideal
obligation are the obligations provided in Article 1423 of the Civil Code of the Philippines. (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
The next attribute is known as generality. A rule or norm should not be in the particular form law making it difficult to establish which is right and which is wrong. It is better if the
for that would determine only specific acts, persons, or properties. Rules or norms should be concept of law is free from metaphysical speculation.
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. IX. Conflict with Historical View
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 The positivists view the law as simply the conscious creation of supreme political superior, a
characteristic of legal rules or legal norms. It is because of this attribute that sanctions or man-made set of rules established and enforced by the state. In its perspective, the historical
incentives are provided, giving the people in authority the coercive competence to enforce the view that the law emanates from life and spirit is ambiguous.
rules or norms within the limits set by law. A sanction is any eventual evil annexed to the rule A rule cannot be made before the occurrence of the facts it purports to regulate or govern. In
or norm and may take the form of some punishment, specific, or substituted redress, or the positivists view, the act has to happen before a rule can be made precisely to govern it.
enforced prevention. This is the element that makes the law imperative and jussive, or making
it not merely hortatory or advisory. 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
VIII. Positive Law vs. Natural Law others were quite similar to the present days.
Natural law is law that already exists and is waiting to be discovered. It refers to the standard It can be drawn that the modern rules in relation to a particular place or people mostly were
of conduct that transcends human authority. It is that system of moral and ethical principals traced or taken from past rules or from another legal system. Every modern rule has its own
that are inherit in human nature and can be discovered by humans through the use of their beginning, the issue of conflict of positivists view and historical view is not as real as it was
natural intelligence. Positive law is law made by man. It is a system of rules established by thought.
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. X. Critique of Legal Positivism
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.

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.

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.

Atheism.About Official Website -
Business Dictionary Official Website -http://www.businessdictionary.com/definition/legal-
Kelsen, Hans. “Pure Theory of Law”.
Hubin, Don. “Classical Legal Positivism”
Stanford Encyclopedia of Philosophy Official Website - http://plato.stanford.edu
Legal Positivism - Further Readings at Law.Jrank.Org Official Website -
Pascual, Crisolito. “Introdution to Legal Philosophy”.Premium Printing Press. Manila:1994
thefreedictionary.com Official Website at http://legal-
Wikipedia, the free encyclopedia
BATAS PAMBANSA BLG. 881 voting and during the preparation and the transmission of the election returns or in the
custody or canvass thereof, such election results in a failure to elect, and in any of such cases
OMNIBUS ELECTION CODE OF THE PHILIPPINES the failure or suspension of election would affect the result of the election, the Commission
shall, on the basis of a verified petition by any interested party and after due notice and
ARTICLE I hearing, call for the holding or continuation of the election not held, suspended or which
GENERAL PROVISIONS resulted in a failure to elect on a date reasonably close to the date of the election not held,
suspended or which resulted in a failure to elect but not later than thirty days after the
Section 1. Title. - This Act shall be known and cited as the "Omnibus Election Code of the cessation of the cause of such postponement or suspension of the election or failure to elect.
Section 7 Call of special election. -
Section 2. Applicability. - This Code shall govern all election of public officers and, to the
extent appropriate, all referenda and plebiscites. (1) In case a vacancy arises in the Batasang Pambansa eighteen months or more before a
regular election, the Commission shall call a special election to be held within sixty days after
Section 3. Election and campaign periods. - Unless otherwise fixed in special cases by the the vacancy occurs to elect the Member to serve the unexpired term.
Commission on Elections, which hereinafter shall be referred to as the Commission, the
election period shall commence ninety days before the day of the election and shall end thirty (2) In case of the dissolution of the Batasang Pambansa, the President shall call an election
days thereafter. which shall not be held earlier than forty-five nor later than sixty days from the date of such
The period of campaign shall be as follows:
The Commission shall send sufficient copies of its resolution for the holding of the election to
1. Presidential and Vice-Presidential Election - 90 days; its provincial election supervisors and election registrars for dissemination, who shall post
2. Election of Members of the Batasang Pambansa and Local Election - 45 days; and copies thereof in at least three conspicuous places preferably where public meetings are held
in each city or municipality affected.
3. Barangay Election - 15 days.
Section 8 Election Code to be available in polling places. - A printed copy of this Code in
The campaign periods shall not include the day before and the day of the election. English or in the national language shall be provided and be made available by the
Commission in every polling place, in order that it may be readily consulted by any person in
However, in case of special elections under Article VIII, Section 5, Subsection (2) of the need thereof on the registration, revision and election days.
Constitution, the campaign period shall be forty-five days.
Section 9 Official mail and telegram relative to elections. - Papers connected with the
Section 4 Obligation to register and vote. - It shall be the obligation of every citizen qualified
election and required by this Code to be sent by public officers in the performance of their
to vote to register and cast his vote.
election duties shall be free of postage and sent by registered special delivery mail. Telegrams
Section 5 Postponement of election. - When for any serious cause such as violence, terrorism, of the same nature shall likewise be transmitted free of charge by government
loss or destruction of election paraphernalia or records, force majeure, and other analogous telecommunications and similar facilities.
causes of such a nature that the holding of a free, orderly and honest election should become
It shall be the duty of the Postmaster General, the Director of the Bureau of
impossible in any political subdivision, the Commission, motu proprio or upon a verified
Telecommunications, and the managers of private telecommunication companies to transmit
petition by any interested party, and after due notice and hearing, whereby all interested
immediately and in preference to all other communications or telegrams messages reporting
parties are afforded equal opportunity to be heard, shall postpone the election therein to a date election results and such other messages or communications which the Commission may
which should be reasonably close to the date of the election not held, suspended or which require or may be necessary to ensure free, honest and orderly elections.
resulted in a failure to elect but not later than thirty days after the cessation of the cause for
such postponement or suspension of the election or failure to elect. Section 10 Election expenses. - Except in barangay elections, such expenses as may be
necessary and reasonable in connection with the elections, referenda, plebiscites and other
Section 6 Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or similar exercises shall be paid by the Commission. The Commission may direct that in the
other analogous causes the election in any polling place has not been held on the date fixed,
provinces, cities, or municipalities, the election expenses chargeable to the Commission be
or had been suspended before the hour fixed by law for the closing of the voting, or after the
advanced by the province, city or municipality concerned subject to reimbursement by the
Commission upon presentation of the proper bill.
Funds needed by the Commission to defray the expenses for the holding of regular and
special elections, referenda and plebiscites shall be provided in the regular appropriations of
the Commission which, upon request, shall immediately be released to the Commission. In
case of deficiency, the amount so provided shall be augmented from the special activities
funds in the general appropriations act and from those specifically appropriated for the
purpose in special laws.
Section 11 Failure to assume office. - The office of any official elected who fails or refuses to
take his oath of office within six months from his proclamation shall be considered vacant,
unless said failure is for a cause or causes beyond his control.
Section 12 Disqualifications. - Any person who has been declared by competent authority
insane or incompetent, or has been sentenced by final judgment for subversion, insurrection,
rebellion or for any offense for which he has been sentenced to a penalty of more than
eighteen months or for a crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given plenary pardon or granted
This disqualifications to be a candidate herein provided shall be deemed removed upon the
declaration by competent authority that said insanity or incompetence had been removed or
after the expiration of a period of five years from his service of sentence, unless within the
same period he again becomes disqualified