I. Introduction to Legal Positivism
Positivism is from the Latin root positus, which means to posit, postulate, or firmly affix the existence of something. 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. The basic question to be asked when talking about this theory is “What is law?” 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. 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. 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. 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”.
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.
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.
Thomas Hobbes argued that “it is improbable for any statute to be unjust”. 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”. 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.” 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 every one of the people, and that which every man will have so, no man can say is unjust.”
John Austin on the other hand, adopted some ideas of Thomas Hobbes in his legal philosophy about the nature of law. Additionally, he was known individually for his “dogma” of legal positivism which states that:
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.
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 similar:
“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". 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.
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 assumed standard, is another enquiry.”
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. 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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
IV. COMMAND THEORY OF LAW
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.
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.” During the 20th century, Kelsen claimed that at 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 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. It is characterized as a “pure” theory of law because it aims to focus on law alone. 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 significance of the norms of moral law to positive law. According to Kelsen, “the law is simply not pure when cluttered with axiological norms.”
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. 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.
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. 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. 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.
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.
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.
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.
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 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.
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.
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.
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.
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.
VIII. Positive Law vs. Natural Law
Natural law is law that already exists and is waiting to be discovered. It refers to the standard of conduct that transcends human authority. 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.
“ 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 View
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.
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 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.
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.
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.
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