Legal Positivism

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. 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.

Illustration:

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.

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.