The Positivist Perspective
apart from the perplexities of ethics.
Analytical jurisprudence- one of the oldest
systems of legal science in the sense that the
beginnings of legal science among Roman
jurisprudents are to be found in the use of analysis.
- As a technique of legal science deals also
with mature or stable systems of law. In that
sense, it is also one of the recent methods of
the science of law.
*The modern positivist school of jurisprudence, which
Sir John Austin founded, uses the device or method of
comparative analysis and critical thinking.
Perception of this particular school of jurisprudence
about the nature of the law: something that is
objective, that to say, consciously made or uttered
within the bounds of the different branches of the
government, and, therefore, legally authoritative and
commanding.
The seed of modern legal positivism, was planted by
Socrates.
The Positivist Approach
For positivist jurisprudence, there is no principle of
moral law or natural law. There need not be any
moral or ideal criterion for the validity of law.
Legal positivist merely insist, if rather impatiently and
rigidly, that there is a clear-cut distinction between
the legal order and the moral law.
TWO IMPORTANT FACTORS:
1. The critical attitude of positivist
jurisprudence towards the view that morality
is absolute.
2. The vigorous reaction of positivist
jurisprudence against the transcendental
idealism of teleological jurisprudence based
on its dependence on the postulates of
natural law.
CHARACTERISTICS OF POSITIVIST APPROACH
1. Law is not a moral concept
2. Its unconcealed disillusionment with the role
of the natural law theory in the legal
ordering of society.
A. LAW NOT A MORAL CONCEPT
This means that moral considerations, as a conscious
endeavor, are not significant in positive law.
Positivist jurisprudence cannot overemphasize the
distinction between the legal order and the moral
order. Since they constitute different order, the
positivist would rather keep the law separate and
They are persuaded that the law “that ought to be” is
quite distinct form the law “that is.” The body of legal
precepts can exist without regard to their moral
value, although the influence of the moral order is not
denied.
B. FREEDOM FROM METAPHYSICAL
SPECULATIONS
There are conflicting notions of the meaning of the
postulates of natural law making it difficult to accept
which one is correct. And to accept all, according to a
respected jurisprudent, would simply be self-
deception.
The positivist school of jurisprudence has felt all along
that it is better to free the concept of the law form
metaphysical speculation.
Sir John Austin- laid down the distinction between
positive law and natural law.
- In his view, it is absurd for one to say, as
Blackstone did in his Commentaries of the
Laws of England, that positive law is void if it
is not in accordance with the natural law.
- He said that: What appears pernicious to
one person may appear beneficial to
another. To prove by pertinent reasons that
a law is pernicious is highly useful, because
such process may lead to the abrogation of
the pernicious law. To incite the public to
resistance. may be useful, for resistance
grounded on clear and definite prospects of
good is sometimes beneficial. But to
proclaim generally that all laws which are
pernicious or contrary to the will of God are
void and not to be tolerated, is to preach
anarchy, hostile and perilous as much to
wise and benign rule as to stupid and galling
tyranny.
For positivist jurisprudence, the approach to the
problem of the nature of the law is by way of the
empirical sphere of reality- that is – rather than the
transcendental sphere of ideals- the ought.
The positivist jurisprudents have thus avoided the
study of the ideal law that is characterized by the
normative “ought.” Instead, they have concentrated
their attention on the existential “is” in the study of
the law.
In the legal philosophy of the positivist school, the
“ought”, or that which needs to be, has been equated
with legality. This means that when an act or its
consequence is sanctioned and allowed by a legal
rule, then that is as it should, or had better, be.
HOBBES-AUSTIN POSITIVISM
Thomas Hobbes and John Austin- recognized as the
persons who developed the concept of law in terms of
legal positivism.
Hobbes- advanced the idea that is improbable for any
statute to be unjust.
- He wrote that “before the names of just and
unjust can take place, there must formance
of their covenants. And such power there is
none before the creation of a command and sanction. It maintains the strict
commonwealth.”
- He held that “laws are the rules of just and
unjust; nothing being reputed unjust that is
not contrary to some law.”
- For him, the “sovereign . . is not subject to
the law. For having power to make and
repeal laws, he may, when he pleases, free
himself from that subjection.”
- He stated that “to the care of the sovereign
belongs the making good laws.” By good
laws, he means not “just” laws for laws
cannot be unjust.
- Since laws are made by the sovereign
power, he maintains that “all that is done by
such power is warranted and owned by
everyone of the people; and that which
every man will have so, no man can say is
unjust.”
Sir John Austin- embedded in his jurisprudence the
idea of Thomas Hobbes.
- He also perplexed by the fact that there are
rules of action that are morally desirable but
not acted into laws.
- He held that the first concern of
jurisprudence is to examine the question of
the nature of law without any conscious
regard for its goodness or badness, whether
tested by the application of the measure of
utility, justice or equity.
- He wanted the separation of law and moral
and states: “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.
- He held that law is distinguished from
morality that is to say the existence of law is
one thing, its merit or demerit another.
- Positive law is not immediately or
consciously concerned with morality. The
fact that positive law happens to be “just” by
any of the various means or tests utilized for
that purpose is considered accidental since
the law commands obedience regardless of
its goodness or badness. Positive law may be
moral but to say it is null and void because it
is against morality or contrary to natural law
is absurd.
For the positivist, legal rules can be silly or sound,
good or bad, just or unjust.
BASIS AND GOAL OF THE POSITIVIST
APPROACH
Positivist jurisprudence posits the philosophy of legal
positivism based on the triune concepts of sovereign,
separation and distinction between law and morals
and yet upholds the supremacy of the law regardless
of its goodness and badness,
For positivist jurisprudence, the maxim dura lex sd lex
is indeed correct. Any statute had to be treated as
law.
This placed positivist jurisprudence in quest of the
internal coherence and formal perfection of the
precepts, that is to say the precepts defining legal
rules, precepts defining legal principles, precepts
defining legal concepts, and precepts defining legal
relations. As this goal is realized inconsistent,
conflicting, and overlapping legal precepts are
reduced or avoided and allow for prediction of official
action with greater assurance.
John Austin, Hans Kelsen, Wesley N. Hohfeld, Albert
Kocourek and John Dickenson were among those who
produced studies on the systematic analysis of legal
precepts.
Erwin Hexner, H.L. A. Hart and Alf Ross are among
those who have worked on the systematic analysis of
legal terminology.
Karl Llewellyn, Morris R. Cohen and Karl Olivecrona
have inquired into the problem of the interconnection
existing between law and society.
THE “POSITIVE LAW” SUPPLEMENT
Certain attempts have been made to purify the
Hobbes-Asutin legal positivism. One of these is the
“pure positive” theory. The development of the basic
premises of this legal theory consist of TWO types:
1. Lausanne brand- advanced by the French
jurisprudence Ernst Roguin
2. Vienna brand- posited by Hans Kelsen
Both aspired for the law purified of foreign elements.
But they differed on the meaning of foreign element.
Roguin- sought to free positive law from its bondage
to Roman Law principles
Kelsen- sought to purify positive law by removing
from it any consideration of metaphysical justice and
ethics.
A. THE LAUSANNE BRAND (Ernst Roguin)
John Austin- resorted to Roman law as the basis for
the formulation of legal precepts and to give them
internal coherence and formal order.
Roguin - Instead of Roman Law, he would rather that
the basis for the development and purification of legal
precepts and institutions, be logically derived from
certain historical phenomena, (Example: the
venerable oblutiacs of the people and from creative
thinking, social purposes and values)
- He felt that “pure juridical science” is the
answer to legislation and codification
consistent with the culture of the people.
B. The Vienna Brand (Hans Kelsen)
“pure positive law”
Kelsen- emphasized in his treaties that “the concept
of law has no moral connotations whatsoever”
The purpose of Kelsen’s theory is to know the subject
empirically in order to acheve his theory of pure
positive law.
The pure law theory insists upon a clear distinction
between the empirical law and transcendental justice
by excluding the latter from its specific concerns.
He elucidates his approach by saying that theory of
law is pure because it has no regard to political
values.
Kelsen stated that his theory of law is pre because it
is a theory of man-made law rather than
transcendental law.
In his words:
The Pure Law Theory takes into consideration only
positive law, norms created by acts of human beings.
It doen not take into donsideration norms emanating
from other (i.e: superhuman, authorities) Therefore,
it excludes form the province of jurisprudence any
divine law (i.e.: law supposed to be created by God or
godlike entity) Consequently, it excludes also the so-
called naural law, law which according to the natural
law doctrine is immanent in nature
Kelsen said that there is no reason to misinterpret the
pure positive law theory as a kind of natural law
doctrine
PURIFICATION OF LAW
In order to get the empirical nature of law, Kelsen
advanced a process of purification. The problem
involved is not an inquiry into what the law ought to
be but simply a study of the law as it is, in much the
same manner as the natural sciences are studied.
Kelsen believed that the law can become truly
scientific for it will then be released from
metaphysical and psychological moorings. Thus, the
law would be concerned entirely with that which
actually is “without legitimizing it as just and
disqualifying it as unjust.”
According to Kelsen, positivist jurisprudence admits
one type of “ought”, and that is the “legal ought.”
CONCEPTS OF LAW
Kelsen holds that pure positive law is normative, that
to say jussive and prescriptive, in character.
Kelsen’s attempt to harmonize the “is” and the
“ought” may be understood by starting with the stress
he places on the difference between the statement
that “something is, or done” form the statement that
“something ought to be, or ought to be done.”
According to Kelsen’s pure positive law theory, the
answer cannot be based on the “is-statement,” that is
to say not on a statement of fact, but on an “ought-
statement,” that is to say on a statement of another
norm. In another way of putting it, the “is-statement”
cannot become an “ought-statement” just as the
“ought-statement” cannot become an “is-statement”.
The normative character of laws signifies three
functions:
1. Prescriptive function that is to say it
prescribes definite norms directing human
behavior whether to give, to do or not to do
something.
2. Authoritative function that is to say it
delegates to a person or body of persons the
power to issue rules or regulations whether
to give, to do or not to do something.
3. Permissive function that is to say it allows a
person or body of persons to give, to do or
not to do something.
PRESCRIPTIVE
-when the legal norm prescribes that a
certain action or mode of conduct is prohibited (Ex:
trespass to property, then it ought to provide a
sanction for its violation)
AUTHORITATIVE
-when the legal norm delegates a certain
action or mode of conduct (Ex: issuance by an
administrative body of certain rules and regulations, In Kelsen’s view, “psychic coercion is not a specific
then it ought to provide that it will be backed by the element of law” for there are norms of conduct other
force of society) than law which carry the same king of coercion.

PERMISSIVE Kelsen posits the view that obedience to legal norms

-when the legal norm allows a certain action depends on the pure fact of physical coercion and not
or mode of conduct (Ex: self-defense, then it ought to on any other subjective influence of human behavior.
provide that its commission is not subject to
punishment) Philosophy of empirical justice

Normative legal order
If law is normative, it follows that the legal system is
a hierarchy of non-contradictory of non-contradictory
legal norms, every norm deriving from another norm,
which is the source of all norms. In other words, law
is a system of progressive norms derived from the
basic norm.
All laws are coercive norms or “measure of coercion”
Statutes as well as executive and administrative acts,
orders and regulations which are inconsistent with or
contrary to the previous norms clear to the basic
unchallengeable norm are not normative.
A norm is created may be by any of the means
allowed to the different branches of the government.
When the different branches of government act their
actions produce either a general or a particular norm
of conduct with a sanction, or incentive, or both,
annexed to it. In this sense, the law is a coercive
norm.
For Kelsen supervision and control in a politically
organized society is accomplished by means of the
norms of conduct for private individuals (private law)
and the norms of conduct for public officers (public
law) flowing from the legislative, the executive, the
administrative, and the adjudicative branches of
government. The people are then called upon to
conduct themselves in the manner prescribed by the
legal norms. Obviously, these norms of conduct
create the conditions of peace and order. Behavior
which adversely affect these conditions are dealt with
by the forces of society.
Kelsen’s pure positive law is not based completely
upon legal positivism.
While Kelsen saw the need for some criterion in
evaluating the soundness of positive law his process
of purifying the concept of law by removing from it
any idea of transcendental justice is still dependent
on a theory of justice, even though it is empirical in
nature.
Kelsen’s approach to empirical justice is simple
enough. He does not raise the issue of transcendental
justice.
He states that the “question of whether a positive
legal order. . is just depends on whether that which
the law-maker considers as an evil to society is
indeed a behavior against which society should justly
react, and whether the sanction with which society
actually reacts is appropriate.”
In the pure positive law theory, the metaphysical
or ethical idea of justice appears to be the very
antithesis of a good legal order. Kelsen reasoned that
these ideas of justice “permit any positive legal order
to appear just.”

If men, without permission, were able to do the very

things that are prohibited or disapproved by the legal
order, then the physical conditions of peace and order
would be cancelled and licensed or lawlessness would
supervene.

The Vienna school conceived of the law as a system

of coercive pure positive norms of human conduct.

In Austin’s view, obedience to the will of the supreme

political superior depends on the feeling of awe and
fear