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Positivist School Slides
Positivist School Slides
Group 3
Angelique Solis
Sarah Mae Bogador
Nizzane Vico
The Positivist School
DIVINE LAW
- laws of God; laws which are set by God to his human creatures
HUMAN LAW
- man-made law; laws set by men for men
2 Types of Human Laws
LAW
“a rule laid down for the guidance of an intelligent being by an intelligent being having
power over him”.
“command of the sovereign”
Instead of being based on ideas of good or bad, it is based on the power of the
superior.
Law is strictly divorced from justice.
He made a distinction between law and morality.
Command Theory
LAW Sanction
“command of the sovereign” There must be a provision of punishment In
case a law is disobeyed. There cannot be a
law without punishment.
“Commands” involve an expressed wish that
something be done, and “an evil” to be imposed if
that wish is not complied with. Duty
- expressions of desire that another shall do or As a law is a command of sovereign, it is a
forbear from some act and are accompanied by a duty of everyone to obey it.
threat of punishment (the “sanction”) for
disobedience.
Command, duty, and sanction are
inseparably connected terms.
The more severe the punishment (sanction) is,
the greater the efficacy of the command. A command generates a duty for fear of a
sanction.
- It creates a greater sense of
obligation (duty) to follow.
LAW
“command of the sovereign”
SOVEREIGN
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.
Is factually determinable and legally
unlimited.
Switzerland General Insurance Company, LTD., vs Republic of
the Philippines
* Ernst Roguin felt very strongly that the answer to the problem of the validity of
positive law lies in pure juridical science consistent with the culture of the people.
• Almost a quarter of century after, Hans
Kelsen developed “Pure Positive Law”
Theory.
• Thus the validity of the norms of positive law no longer depend on their correspondence
with ethical norms or precepts of natural law.
• This is what Kelsen means when he posits the idea that the concept of law has no moral
connotations whatsoever.
• The Law is indeed separate from moral law and natural law.
“the pure positive law theory considers
only human norms, not norms coming from
other superhuman sources”
* Hans Kelsen emphasized that the process is simply an inquiry into the nature of the
law as it is, in as much as the same manner as the natural sciences are studied.
* Hans Kelsen states that the nature of law must be 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 invariably loses its power as a means of social
control.
Normative Legal Order
• This means that the nature of law “is not simply a system of coordinated
norms of equal level but a hierarchy of norms of different levels.
* If the law were a system of coordinated norms of equal level only, then, legal
norms would not be positive or jussive and would be hard put to serve as guides to
the legal ordering of society.
* According to Hans Kelsen, the grand and legally unchallengeable norm, or simply
the grandnorm, “is not the product of free invention nor is it presupposed
arbitrarily”. The grandnorm is conceived by the collective will, capacity and
competence of the people free from axiological ideas.
“is-statement” vs. “ought-statement”
* “is-statement”- that something is, or something is not
done is expressive of a simple reason for action.
• By this very fact and only by this fact that the legal norm is distinguished from social
norms.
• If the law is not considered as a hierarchy of non-contradictory norms, then the law
cannot be perceived as pure and positive, that is to say normative or jussive.
• Because of the jussive nature of the law the members of society are obliged to conduct
themselves in the manner prescribed, or authorized, or permitted by legal form.
• They should obey the legal norm or otherwise suffer the consequences.
Empirical Justice
* Hans Kelsen simply has no place in his philosophy of pure positive law for any
concept of justice with axiological underpinnings to evaluate the soundness of the
legal norm defining what is due to every person.
* Kelsen was after justice that is “real and possible”
* Justice is real and possible when it is appropriate to the evil which society has a
right to avoid in the first place.
*
*
*
*Nature has placed mankind under the governance of two sovereign
matters, Pain and Pleasures.
*Approves or disapproves of every action whatsoever, according to the
tendency which it appears to have augment or diminish the happiness
of the party whose interest is in question.
*It is vain to talk of the interest of the community, without
understanding what is the interest of the individual.
*
*I ought do that act which will bring about
the greatest happiness (pleasure) for the
greatest number of persons (the
community).
*Greatest Happiness Principle
*
*Bentham claims that a principle may be different from the
principle of utility in two ways:
- opposed to it: like asceticism, the view that pleasure is
bad and pain is good
- it could be no principle at all: like the “principles” of
sympathy and antipathy, where what is good or bad is just what
strikes each person as good or bad.
*
*Bentham contends that asceticism is the result of a
mistake: in observing that many pleasures, when
overindulged, cause more pain than pleasure, ascetics
conclude that all pleasure is bad.
*
*
*Bentham accuses politicians and popular figures
subscribing to this principle, rather than any consistent set
of values.
*
*Physical – when a punishment or reward is caused by one’s
own action.
*Political – when punishment or reward is caused by the
law.
*Morals – when punishment or reward is socially inflicted
(by other people).
*Religious – when punishment or reward is caused by God.
*
*In outlining the previous, Bentham has a particular goal; to
demonstrate that utility is the best principle to base morality
and the law off of.
*It is better than asceticism or sympathy/antipathy, and can
influence all human behavior through the sources of
reward/punishment.
*What remains to be explained is how to apply the principle of
utility.
*
*Hedonic Calculus:
Total Pleasure/Pain can be calculated using the following parameters:
1. Intensity: How intense is the pleasure/pain be?
2. Duration: How long will the pleasure/pain last?
3. Certainty: How certain will the pleasure/pain be?
4. Propinquity: How near in place and time will it be?
5. Fecundity: How likely is it to generate the same?
6. Purity: How much pure pleasure/pure pain is it?
7. Extent: How many people are affected?
*
*
PROS CONS
1. INTENSITY
2. DURATION
3. CERTAINTY
4. NEAR
5. FECUNDITY
6. PURITY
7. EXTENT
TOTAL
*