this discussion, the existence of the law depends on
Legal Positivism the social fact and depends on the presence of
So from the natural school of thought, we are going
to discuss the next most prominent school of thought
which is called the positivist school or legal
positivism. So in this particular school of thought is a
reaction against the natural law theory. In definitions
of legal positivism.
Legal positivism Defined (1): is the thesis that the
existence and content of law depends on social facts
and not on its merits. So the English jurist John
Austin formulated it, thus the existence of law is one
thing, its merit and demerit another. Whether it be or
be not is one enquiry. Whether it be or be not
comformable to an assumed standard, is a different
enquiry.
The positivist thesis does not say that law’s merits
are unintelligible, unimportant, or peripheral to the
philosophy of law. It says that they do not determine
whether laws or legal systems exist. Whether a
society has a legal system depends on the presence
of certain structures of governance, not on the extent
to which it satisfies ideals of justice, democracy, or
the rule of law.
Okay so when we talk about positivism, they are
trying to distinguish the discussion between what the
law is and what the law should be kasi if you notice
in the natural law theory, the naturalists keep relating
the law to a particular moral standard. For example,
for the greeks, the law should make the citizens
happy, so happiness. For Acquinas, the law must be
reasonable however for positivists such as John
Austin, he states that before we talk about what the
law should be, let’s focus on what the law is right
now. So, ang language kasi ng natural law is dapat
ganito dapat ganyan, but instead of talking about
anong dapat sa batas, pag-usapan natin ano ang
batas. So, that’s basically what legal positivism is.
The discussion of the current state of the law is
according to positivists, the proper subject of
Philosophy of Law. It should not about the merits of
the law. So the positivists do not want to focus on
the discussion of whether a law is good or bad. They
just want to focus on what the law is, so looking at
certain structures of governance.
So what are the social facts and structures being
referred to here?
This refers to the legislative structure of a particular
society. So
Legal Positivism Defined (2): What laws are in force
in that system depends on what social standards its
officials recognize as authoritative; for example,
legislative enactments, judicial decisions, or social
customs. The fact that a policy would be just, wise,
efficient, or prudent is never sufficient reason for
thinking that it is actually the law, and the fact that it
is unjust, unwise, inefficient or imprudent is never
sufficient reason for doubting it. According to
positivism, law is a matter of what has been posited
(ordered, decided, practiced, tolerated, etc). Austin
thought the thesis “simple and glaring”. While it is
probably the dominant view among analytically
inclined philosophers of law, it is also the subject of
competing interpretations together with persistent
criticisms and misunderstandings.
So for positivists, the law is what is posited, so kaya
yun positivism, that is the root word for positivism.
So what does the verb posit mean? It means to put
in place or put in position. So that means for
positivists, the law is something that was put in to
place or position so okay the law is put into place by
what? It is put into place by social facts, structures,
and standards. So different societies have difference
structures, standards, and social facts. Pero in most
modern societies, this particular standards refers to
the legislative branch of government. For example,
if you analzye the new civil code under the positivist
theory, the civil code is law from the simple fact that
it is passed by legislation. Similarly, the RPC is a law
by the fact that it was passed by legislation. So yung
positivist, gusto nila ilabas muna yung conversation
na kung masama or mabuti ba ang isang batas or
isang particular provision of law. Hindi muna yan
pag-usapan for them. That’s why it is said here that
the fact that a policy would be just, wise, efficient, or
prudent, is never sufficient reason for thinking that it
is actually the law. So even something that is just,
wise, efficient, and prudent, if it’s not passed by
legislation, then that is not law. And the alternate of
that the fact that a law unjust, unwise, and inefficient,
or imprudent, is never sufficient reason for doubting
it. That means just because a law for positivists, that
it is unwise, unjust, and unreasonable, it does not
erase the fact that it is law if it’s passed by legislation
and if it is not repealed by legislation. So for the
positivist, just because the law is bad, let’s not make
it any less of a law.
So this is the discussion of the author Tabucanon. A
different discussion but same principle. So legal
positivism defined (3), also known as “classical legal
thought, is the opposite of natural law theory. While
the latter anchors a law’s worth on its compliance
with moral standards, legal positivism regards a
law’s validity by its social convention i.e. law as
posited by society and not by absolute ideas of
morality or notions of justice. For a legal positivist, a
law is law when it is backed by coercive power of the
state. Law is a component of society’s larger political
framework; it is a political or social creation. This is
the “political criterion” test of legal positivism;
whereas natural law conforms to the “moral criterion”
test.
For example, sa doggies, there’s a theoretical
example, the name of the law is republic act YYY, so
this is how political criterion test of the postivist
apply. So if you ask the positivist, “is republic act
YYY valid?” so the positivist will tell you that if RA
YYY passed through congress and it followed the
required constitutional procedures such as multiple
readings, then YYY is valid. But if it did not pass
through the constitutionally approved procedures, or
there is a fatal effect on the procedure, then YYY is
not a law. So, its validity depends on whether or not
it passes the standard required by Philippine political
structure, again that’s the legislative department. So
that is the political criterion test.
So for naturalists, it’s a natural law just to distinguish
them, this is how the moral criterion test applies. So
if you ask the naturalist or the natural law thinker, is
republic act YYY valid, the naturalist will tell you that
if YYY promotes the common good, it promotes
happiness of the citizen, it is reasonable, it conforms
to the morality and natural law, then RA YYY is valid.

So let’s try to analyze, so it says here that positivism

is the opposite of natural law theory and next it says
that the validity of law depends on its compliance
with social convention. Again, in the Philippine
context, the law is the law because it follows the
social convention of being passed through the
legislative process so that’s the modern society on
how laws are passed. It also says here that the law
involved the coercive power of the state, of course,
if you do not follow the law then there is a particular
sanction but much important in this paragraph i think
is the mention of political criterion test of legal
positivism, in contrast to the moral criteria test of
natural law. So for political criteria test, that means a
law is a true law if it meets the required standard by
the political structure of a particular society. Again,
hindi siya all the time legislative kasi for example, This is valid. However, in contrast, if RA YYY does
tribal societies,, that’s not exactly followed yung not promote the common good, causes unhappiness
legislative department. But when we talk about the to the citizens, or is not reasonable or does not
moral criterion test, this means that a law is a true conform to the principles of morality then RA YYY is
law if it meets the standard of natural law. not law. For Naturalist, the validity depends on
whether or not it passes the standards of morality
and natural law. So that is moral criteria test.

I just put up this picture. So to evoke that imagery,
again, that philosophy employs it's, it's like a
conversation, so for example, Naturalist has
comments about the law.
Plato, just like when you gather with your friends,
there's a particular topic and there's a back and forth
exchange of ideas. So the first to comment about law
is really the, the Greeks, the natural law
philosophers, then eventually, there’s this
disagreement coming from the Positivist. So if
there’s a discussion, and someone criticizes you,
you do not just take it lying down.
So pag may mag kontra sa ‘yong idea, you’ll also
have a reply. So later on, we will see that, the natural
list also have something to say against the Positivist.
ALTERNATE WAY OF EXPLAINING POSITIVISM
One way of understanding LEGAL POSITIVISM is
by using this analogy, Bernardo, and even some of
the original philosophers in positivism uses the
analogy of a sports game. Sports game, let's just
take a common example, basketball game. In
basketball, that if you shoot the ball beyond the three
point line, then you score three points, you do not
question anymore” Bakit three points? Bakit hindi
two?” they cannot question “Gawin kaya nating 2.5?”
“Why three? Is that fair?” of course, no one does
that.
And you do not need to assess the rules. You just
need to know that the rules are there. They're
posited, they're placed into position, and you play
the game according to the rules. It's either win or
lose, that's how positivist see the law. So for them,
unlike naturalist, uh, you follow the law because it's
the law period. Hindi ka na magtanong, Does it
promote the common good? Does it make people
happy? For them, the approach in studying law
should not be like that you just need to focus on the
law and not what is ought to be. You know, the law
is the law, just as basketball, there are rules and you
just need to follow them know.
So for positivist, uh, strict study of law as it is,
means you do not ask this or question it, you just
know, or you just study what has been placed by a
legislation or posited by legislation.
So in contrast to the overlap thesis mentioned in
natural law, the positivist have what is known as
SEPARABILITY THESIS. (from Stanford
Encyclopedia of Philosophy.)
So severability basis, as explained by Tabucanon:
The examples given by Tabucanon here are,
versions of law that have nothing to do with
morality. For example, opposite driver seat, that
has nothing to do with reasonable, common good,
nothing to do with morality. That those laws can exist
independent of, morality, or even if there's no
overlap with a natural law
So if we can attempt to visualize the overlap thesis
we can also attempt to visualize the separatability
thesis.

We use the similar figures in overlap thesis, but take
note of letter D, because in overlap thesis, the
preferable figure is letter B because there's a strong
overlap between moral principles and law. But for
positivist, all those models are valid.
Take note of this: The positivist do not say that
the law is not influenced by morality. They, they
know that, uh, there are times that morality really
influences the law. It's just that for positivist they
do not attribute the existence of law to its
overlap with morality.
So for a naturalist, Figure B is the ideal situation, but
for positivist, all of these figures are acceptable. Like
for Figure A, they accept that sometimes there's
overlap with natural law and jural law. For B, that
happens C it happens, but the difference is figure D
it is possible for a law to exist, even if it has no
relation to common good, even if it has no
relation to morality.
So it is possible to conceive of a particular law that
does not have anything to do with morality (i.e. driver
seat placement). Therefore, according to this
commentator, it is also possible to hypothesize that
there can be an entire legal system that really does
not have any overlap with morality.
(BREAK)
So John Austin is the philosopher that is open
credited to be the father of the Positivist school of
thought.
It is relatively simple, in positivism:
“What is the law? Eh di yung gipasa ng Congress.”
“Mahasulan sila sa mga Natural Law Philosophers,
na mag consider pa sa reasonable, utopia, common
good.”
It’s simplicity gives it an evocative power that
contributes to adapt to that period. So it's a relatively
simple way of engaging with the law.
Excerpts of the original work of John Austin, entitled
Province of Jurisprudence Determined.
Take note: This list is not the kinds of law for John
Austin. What he is trying to show here is these are
the several usages of the word law in the English
language. So this is not the types of law. This is how
we encounter the terms like a law or rules or
morality.

Gi classify niya into four. For Austin, only the second
item should be considered as the topic of Philosophy
of law; yung positive laws lang. Again, positive in the
sense that it is posited or placed by legislation. So,
the rest are phrases that properly use the word law.
Lets go to number three:
Rules of Positive morality cannot be considered law
for the following reasons:
● Positive moral rules which are laws
improperly so called, may be styled laws or
rules set or imposed by opinion; for they are
merely opinions and sentiments held or felt
by men in regard to human conduct.
(Positive Moral Rules): that is to say, such of
the laws or rules set by men to men as are
not armed with legal sanctions; or such of
those laws or rules as are not positive laws,
or are not appropriate matter for general or
particular jurisprudence.
So laws of moral conduct are not considered
‘laws’ in the true sense of the word. We
sometimes say that they're laws in English
conversation language but they are merely
opinions and sentiments. The implication
here that morality can be subjective and just
based on opinions and sentiments. So,
statements that involve positive moral rules
are merely opinions. Statements such as :
- HONESTY IS THE BEST POLICY
- CLEANLINESS IS NEXT TO
GODLINESS
So, of course Austin makes it clear; that is not the
law we are talking about.
So now let’s go to LAWS METAPHORICAL AND
FIGURATIVE; ang number four earlier.
● Laws metaphorical or figurative, or merely
metaphorical or figurative, are law improperly
so called. A law metaphorical or figurative
and a law imperative and proper are allied by
analogy merely; and the analogy by which
they are allied is slender and remote.
Instances of such a use of the term ‘law’ are
the expressions- ‘THE LAW OF HONOR’,
’THE LAW SET BY FASHION’ and rules of
this species constitute of what is usually
termed ‘INTERNATIONAL LAW’.
So, when we talk about METAPHORICAL
AND FIGURATIVE LAW, as encountered in
English Language. Their relation to law is a
very slender and remote analogy to three
laws. So sinabi dito, laws of fashion.
For example, according to Coco Chanel, if
you're a lady there's this rule in fashion that
before you leave the house, you take one
accessory para elegant. Para di overkill ang
OOTD mo. So, in formal conversation, say
this is a law on fashion, but again this is a
remote and slender analogy of the law. It's
the term. This is an example of a LAW
METAPHORICAL AND FIGURATIVE
SENSE. Concepts like this are excluded
from the study of law.
Here is another example of
METAPHORICAL OR FIGURATIVE LAW.
This is from One More Chance. An ICONIC
PIECE OF PHILIPPINE CINEMA (char). So
yung rule na makipag break ka daw, dapat
bigyan mo ng three months bago ka
maghanap ng bago. Of course, that is
metaphorical or figurative laws or rules. It has
nothing to do with law or it should be
excluded from the study of law.
So, for Austin, a DIVINE LAW should also be
excluded in the strict science of jurisprudence.
Austin did not define divine law as nonsense or
without use. It's just that he believes that the topic of
divine law should fall under the science of legislation.
More on that later-
But bakit niya pa kailangan i discuss ito na obvious
man na hindi- yung laws of fashion- that's not part of
Positive Law?
Because for positivists, there was a great confusion
of the term law by the Naturalists. So dili na mag ka
dimao. Kay may dalawa sila- jural law and non jural
law. So, in Philosophy of law during that time; the
language was very confusing. That's why in the
opening of this book or work- John Austin made it
clear that we are only talking about positive law
(wala ng iba)- there was a statement of the obvious.
So this is one of the important concepts of positivism
as set forth by John Austin.
For the essential difference of a positive law (or the
difference that severs it from a law which is not a
positive law) may be stated generally in the following
manner:
Every positive law or every law simply and strictly so
called, is set by a sovereign person, or a sovereign
body of persons, to a member or members of the
independent political society wherein that person or
body is supreme. Or (changing the phrase) it is set
by a monarch, or sovereign me☐number, to a person or
persons in a state of subjection to its author.
Again, in the Philippine context, when we talk about
the sovereign body of persons, this refers to the
LEGISLATURE. But in positivism, the element of
COERCION is also very important. So, the executive
department also plays a role in positing or
positioning the law. Although it is the legislative that
makes the law, the executive ENFORCES the law.
It is a branch of government that applies FORCE so
that the law is feared and citizens are SUBJECTED
to it.
So, as mentioned by Austin:
Every law or rule (taken with the largest signification
which can be given to the term properly) is a
command. Or rather, law or rules, properly so called,
are a species of commands. Being liable to evil from
if I comply not with a wish which you signify, I am
bound or obliged by your command, or I lie under a
duty to obey it. If, in spite of that evil in prospect, I
comply not with the wish which you signify, I am said
to disobey your command, or to violate the duty to
which it imposes.
When I am talking immediately of evil itself, I employ
the term SANCTION. The evil to be incurred being
signified directly once the obnoxiousness to that evil
with the expression or inclination of the wish are
indicated indirectly. OLD ENGLISH, let's simplify:
So basically, for him, the law is a command. So,
when you say a command, there is an intimation of
hint
a wish. Sabihin mo yung gusto mo paired with a
sanction or an immediate evil (or punishment if hindi
sinunod ang gusto mo). The law does not just say it
wishes for the citizens. It also accompanies what it
wishes with a SANCTION, FINE, or
IMPRISONMENT. It is this coercive force of law that
helps law secure a position in society and part of
social reality. The legislature cannot just say what it
wishes for the citizens or how it wants the citizens to
act. It also needs to impose punishment and it is the
EXECUTIVE department that enforces these
commands and sanctions.
Those are the basics of John Austin.
HANS KELSEN: THE PURE THEORY OF LAW
Hans Kelsen was an Austrian jurist, legal
philosopher, and political philosopher. Also, one of
the authors of the AUSTRIAN CONSTITUTION. His
most influential work is THE PURE THEORY OF
LAW. We will take a few excerpts from that.
According to Kelsen,
The postulate to differentiate law and morals,
jurisprudence and ethics, means this: from the
standpoint of scientific cognition of positive ethics, its
justification by a moral order different from the legal
order, ir irrelevant, because the task of the science
of law is not to approve or disapprove its
subject, but to know and describe it.
True, legal norms, as prescriptions of what ought to
be, constitute values; yet the function of the science
of law is not the evaluation of its subject but its free
description. The legal scientist does not identify
himself with any value, not even with the legal value
he describes.
So, one who is engaged with the study of law is not
supposed to approve or disapprove it but just to
know or describe it. For positivists, if you're going to
study the law, no comments on whether it's good or
bad or whether it's valuable or not. Your task as
someone who studies the law is just to know it and
describe it.
Scientists when they observe under a microscope,
he writes his observations. Sa microscope, wala na
man comments ang scientist na this is for the
common good, this is reasonable, this is evil. He just
writes his findings. So for positivists like Kelsen,
ganun din dapat yung Philosophy of Law. As a
scientist of law, you're only supposed to describe it-
not to assess it, not to approve or disapprove of it.
–----------------------------------------------KATE END—--
-----------------------------------------------
Not to make us a scientist of law, you’re only
supposed to describe it, not assess it or approve or
disapprove of it.Ok. If you're following the lecture,
out of all the schools of thought, although dalawa
lang naman yung diniscuss natin so far, the
operating philosophy the Ateneo de Davao College
of Law is really a positivist school of thought. So
actually ganito lang ang thinking natin noh?
As a student, your task is to know the law and to
describe it. As a student, you're not asked for your
opinion or your input whether you think the law is
good or bad. Most of the time and you are not going
to be asked that , you're not going to be asked of
your opinion. It's not because Ateneo is hostile to
such discussion , it's because we don't have the
luxury of time. Kasi four or five years is a short period
to know the law. And you're going to be prepared for
the bar exam. And hindi naman magtanong yun sa
bar exam if you think this law is reasonable or do
you think this law is good , walang ganyan na
question noh? So parang positivist talaga ang
underlying philosophy of at least most of Philippine
law schools. You just have to know the law and
describe it and know how to apply it.
This is different in American schools, like in the US
they value more like hindi naman sila pabonggahan
ng scores noh? They value more the public service
in their law school. They value the practicum more,
like for example Obama, he was known in his law
school, not because he is a top notcher kasi wale
naming ganun sa US, but because I think he was the
class president, he was the head of their publishing
in their legal publication, so Iba ang kanilang
attitude. I just noticed noh basta law school ano
talaga positivist. No other comments from the
students, basta alamin yung law then tapos na.
OK so we're going back to these two philosophers,
we're going to discuss positivism as criticism against
Natural Law Theory. I mentioned earlier that
positivism is the opposite of Natural Law Theory. So
let's go to the specifics of that. The main criticism of
positivist’s School of Thought against a Naturalist is
that, Naturalist commits what is known as the “is-
ought” fallacy. And the common comments that legal
positivists say that the law is the law, even though
it's immoral, and they posit that its legal requirement
is what makes the law a true law, should not be
confused with its moral requirement. Legal positivist
look at natural law as confusing between the laws
meeting the requirement and its compliance
requirements.
Jeremy Bentham, a legal positivist cites that is-ought
fallacy and our view on the law as it should be
distinguished from the law as it should be, the
proposition that a law is valid it's not the same as the
one who ought to obey it. Food is food whether it is
well or badly prepared and its existence, I.e. that it is
not the same as one ought to eat it. Ok so it's one
thing to describe what the law should be and what
the law is. This fallacy occurs in the works of
Naturalist when they try to interchange and
discussion of what the law is and what the law ought
to be. For example when we go back to our previous
discussion on natural law philosophers, like for
example si Thomas aquinas sabi nya na “ A law that
is unjust law is not a law”. For positivists, they find
that statement confusing. Kung ang just law hindi
sya law, eh ano sya, just a bunch of words? What is
it trying to say when Sir Thomas said that an unjust
law is not a law. If there's a particular law that is
unjust, then what is it? So parang ganun confusing,
ang language na yun is confusing. Again because
the naturalists keep on switching between is and
ought. So, parang sabi ng positivist, baka eto yung
sabi ni St Thomas Aquinas yung gusto yang sabihin
na an unjust law is law but a law ought to be just.
From this initial phrase, he separates nya into 2
phrases noh. Less confusing and more
grammatically correct let's not confuse is and ought.
So that's the frustration of the positivist with a
naturalist. For them don't tell us what the law ought
to be and tell us what the law is, that should be the
concern in the first place, so ayawg ingna kung unsa
ang dapat sa balaod , ing na kung unsa ang balaod.
That is the ought fallacy kasi naturalists tend to
interchange the two concept together that is how the
fallacy is committed.

So going back to the work of John Austin, he did not
discredit the principle of natural law, it's just that for
him, we have to organize how we approach law . For
him there should be a distinction between the
science of legislation and the science of
jurisprudence. And going back to John Austin, that
the department of science of ethics which is
concerning especially with positive law as it ought to
be is styled the science of legislation; that the
department of the science of ethics which is
concerning especially with positive morality as it
ought to be, has hardly gotten a name perfectly
appropriate and distinctive. Now, though the science
of legislation , or positive law as it ought to be, is not
the science of jurisprudence(or positive law as it is)
still the sciences are connected by numerous and
indissoluble ties. So the study of what the law ought
to be should be relegated to the science of
legislation. Of course from the term itself science of
legislation means it is the concern of the legislature.
So kung anong dapat sa batas, what the law ought
to be, give that problem to the congressmen, give
that problem to the legislative council, kasi their
concern is the science of legislation.
It's also the concern of science of ethics but the
discipline of knowing what the law is should be
relegated to the science of jurisprudence so this
refers to the study of the law as what it is at the
present moment, so kung ano ang batas sa ngayon
or what the law is right now, that is the concern of
the students, that is a concern of the lawyers. So
gusto nya no ni John Austin, I-seperate nya para
hindi confusing ang language. So there has to be
this distinction so that the thinkers will not commit
that is-ought fallacy.
According to the Scottish philosopher named (?) the
analytical positivist influenced by those methods still
affirmed the Australian belief that law can and ought
to be made the subject of study separately from
morals that can be seen as a system or rules with
the logic of its own capable of more satisfactory
elucidation than heretofore; and that the methods of
linguistic analysis pursued by the philosophers can
be employed in jurisprudence to clear up many
puzzles which have troubled legal theorist; and to
produce clear thinking for lawyers generally. So
according to this commentator, Austin produces a
clear way of thinking about the law by creating the
science of legislation and jurisprudence.
Furthermore Austin wanted to show that we can
make sense of the law on its own and we don't have
to derive our logic from natural law. The law can
make sense even if you don't have to bring God into
the discussion. It is logical and it's own. So this is
related to criticism against naturalists. Again there is
a lack of precision in the language of natural law
theory. The positivists are concerned in the Natural
Law Legal Theory, there’s always this back and forth
between jural law and natural law. This can be
confusing to the readers. So Austin says that I
determined positively what that matter is, and I
distinguish it from various objects which are
variously related to it, and with which is not
infrequently blended and confounded.
And regard that earlier as John Austin clarified noh
na positive law hindi to yung law of passion, laws of
morality hindi to metaphorical or figurative laws.
Again this is all, and similarly John Austin also
separated, wants to separate the study of legislation
and the study of jurisprudence. Again his goal here
is to really clear up the confusion in the language.
The dominance of the natural law’s School of
Thought got a lot of confusion, that's why they want
to focus on the positive law. That is his reaction to
the confusion in laws noh. Ok so let's now go to, next
criticism against naturalists and this is the more
important or incisive criticism of when we talk of
morality, morality is subjective and therefore it does
not make sense to make morality the basis of law or
have the law overlapped with morality.
END
Positivism as a Critique to Natural Law Theory
And therefore, it does not make sense to make morality
the basis of law or require the law to have a strong overlap
with morality or natural laws. A substantial portion of
Kelsen’s work, the Pure Theory of Law, discusses this
criticism: “In view of the heterogeneity, however, of what
men in fact have considered as good or evil, just or unjust,
at different times and in different places, no element
common to the contents of various moral ordered is
detectable. (Hans Kelsen, Pure Theory of Law)”
“For if one does not presuppose an a-priori, that is
absolute, moral value, one is unable to determine what
must be considered good and evil, just and unjust, under
all circumstances. And then, undeniably, also that which
the mentioned coercive order commands may be
considered as good and just, and that which it prohibits as
evil and unjust, so that this order to too is- relatively-
moral and just. All moral orders only have one thing in
common: namely, that they are social norms, that is,
norms that order a certain behavior of men- directly or
indirectly- towards other men. All possible moral systems
have in common their form, the “ought”; they prescribe
something, they have normative character.” We
mentioned this before when we discussed morality that
religion is heterogenous- iba-iba ang religions sa
Philippines. And in turn, religious morality is also
heterogeneous, similarly Kelsen made the observation
that there is great heterogeneity on what men consider as
good and evil. There is no single a-priori statement that is
common across all different senses of morality. So,
walang one statement or particular conclusion that all
religions and all senses of secular morality around the
world have in common. The only thing that’s common
and observable across all different senses of morality is
that religions have different senses of morality and they
all have a theme that tend to direct how people treat each
other. So the postulate make under the
“The postulate made under the supposition of a relativistic
theory of value, to separate law and morals and therefore
law and justice, merely means this: (1) if a legal order is
judged to be moral or immoral, just or unjust, these
evaluations express the relation of the legal order to one
of many possible moral systems but not to “the” moral
and therefore constitute only a relative, not absolute,
value judgment; and (2) the validity of a positive legal
order does not depend on its conformity with some moral
system.” What he’s trying to say here is that you’re going
to make a particular moral judgment against a particular
law, you can only assess the morality of law from a certain
moral system and you can never analyze it under “the”
moral system kasi there’s no such thing as “the”' moral
system. There’s no universal sense of morality, and
therefore, whatever judgment we can make against a law,
there can never be an absolute conclusion. So when we
discuss relativity, it is said that you can only judge certain
things from a certain framework of assessment. So, if
you’re going to make a judgment that a law is bad, you
can only make a judgment from your point of view as a
Christian, as a secular moralist, as an Atheist, etc. There’s
no such thing as an absolutely bad law or an absolutely
good law because as Kelsen says, the validity of a positive
legal order cannot depend on its conformity with
someone’s system kasi iba-iba naman tayo. So that’s his
positivist criticism of natural law theory.
When we talk about morality, that’s always subjective.
Okay so let’s go to current events to conceptualize the
discussion. You’ve heard of the news, yung from
Wired.com: a suspected killer’s fans are still promoting
him only after a local politician and two others were
gunned down in the Philippines. All supporting the
suspect continued to gain traction in social media. This is
basically the headlines in the news nung may pinatay sa
Ateneo de Manila during a law school graduation. Former
mayor of the city of Lamitan in the Philippines was
attending her daughter’s graduation when she died on July
24, a man shot and killed her and two others at the
graduation ceremony at Ateneo de Manila University’s
School of Law. The shooting suspect was identified as
Chao-Tiao Yumol, a doctor from Lamitan and a micro
influencer who used his verified profile on Facebook
where he had about 60,000 followers at the time to discuss
politics. In the immediate wake of the shooting, Yumol’s
Facebook page gained nearly 13,000 new followers
according to reports from local outlet, Rappler. And it
became the hub of comments, many of the people praising
the shooting and sympathizing with Yumol’s decision. So
you’ve heard of this naman siguro no, yung doctor na
assassin sa college of law, he has many sympathizers. So
why am I bringing this up? It’s like ano kasi, that story is
like a darker version of the story of Antigone. Kasi, dba
remember sa story of Antigone, she defied jural law for
the sake of greater reality which is the natural law. So, for
naturalists, hero si Antigone kasi gidefy niya ang jural law
for natural law. But that story seems to imply that if a
person believes a law is unjust, then you are free to violate
it. Yun yung parang another implication of that story-
human law must always yield to natural law. Ito naman sa
story ni Yumol, he was steadfast in his decision to kill
those people kasi he believed that it was for the greater
good. Kasi he did it against the corrupt local government
officials; and he had supporters no, supporting his act of
killing those people. Yun yung interpretation ni Yumol ng
natural law eh- kasi yung pagpatay niya doon sa mga tao
na yun, he said he was doing it for the greater good. He
violated jural law in order to fulfill his pursuit of natural
law, the greater good of his local community something.
So it’s really like a darker version of the story of Antigone
no, anyway that’s just my personal reflection. Pero ito
yung basis ng criticism ng positivist na if you’re going to
violate jural law, for the sake of natural law or a greater
reality, then magkaiba-iba naman tayong lahat ng sense of
greater reality, so how does that make sense? Morality is
very subjective. And if you’re going to inculcate in the
people’s minds that “ah sige, okay lang mag violate ng
human law in the name of natural law, then it can lead to
unexpected consequences like yung nangyari sa ADMU
no. Kasi for him, tama man ang ginawa niya. And in that
sense, yielding to the greater principle of justice. But
anyway, ginarelate ko lang. Just take note na that’s one of
the criticisms of the positivist to the natural law view. You
know, our sense of morality is subjective and it’s very
unreliable. Di natin pwede pilitin na magoverlap and law
and morality kasi morality is extremely subjective.
Defenses of Natural Law Theory
As I said before, Philosophy is like a conversation. If
someone speaks against you, of course you reply no?
Maraming mga negative comments ang positivists sa
naturalists, so it also follows na mag reply din yung mga
naturalists. Of course, sila Plato, sila Aristotle, sila St.
Thomas Aquinas, they cannot reply to the criticisms
anymore for the simple fact that they are already long
dead when the positivist school of thought came about.
So, these defenses come from the students of natural law
legal theory or the modern philosophers that still prescribe
in the natural law theory. So, what are some of the
defenses of the naturalists against the criticism of
positivism?
WHAT ARE THE DEFENSES BY THE
NATURALISTS AGAINST THE CRITICISM OF
POSITIVISM?
First, the incorporation of natural law is crucial for
promoting social order.
Okay, the first defense is that: The incorporation
of natural law is crucial for promoting social order. This
is from the Blackwell Guide to the Philosophy of Law.
So, the natural thesis can be sustained if the law’s
characteristic activity is to provide dictates that are
rational standards for conduct and that it provides these
dictates as a means to and because they are means to
realizing social order. Thus, we should say that it is the
lost characteristic activity to provide dictates back by
compelling reasons for action and that the law fails to do
so is a defective law.
The natural thesis can be sustained if the law’s
characteristic activity is to provide dictates that are
rational standards for conduct and that it provides these
dictates as a means to and because they are means to
realizing social order, thus we should say that it is the
law’s characteristic activity to provide dictates back by
compelling reasons for action and that the law fails to do
so is a defective law.
We mentioned in the earlier part of this course
that order is one of the aim of the law. So, one of the
purpose of law is the goal of social order. So sagot ng
naturalist sa positivist na, if you want social order to be
achieved, you have to make it understood to the citizens
what are the principles behind the law and usually which
principles have something to do with morality. Kase, for
positivist diba, dura lex sed lex. Okay, andyan yung law
so sundin mo lang. And follow the law regardless if you
think it is good or bad. So the naturalist reply, if you want
social order and if you want people to follow the law, you
cant just say to them na okay yan yung gipasa ng
legislation so sundin mol ng noh? You still have to show
to them that the law promotes happiness, the law
promotes social good like the Greeks wanted it, you still
have to show to them that the law is reasonable just like
Aquinas wanted it because if people understand the law
they are more inclined to follow it. Then at the end of the
day, there will be more social order. It is crucial to explain
to people the moral principle behind the law. People
follow the law if they understand the moral principles. Di
lng dure lex sed lex.
Second, natural law principles are the creative force of
the law.
This is taken from Scottish philosopher, Patton.

Let us simplify. Kase diba gusto ni John Austin
na organize ang language sa law. Gusto nya i-separate ang
school of legislation and school of jurisprudence. Again
because he wants clarity in the discussion of law. He
wants clarity in language. However, those subscribed to
the naturalists school of thought, they reply that it cannot
be denied that the lines are blurred between what the law
is and what the law ought to be especially since the law
grows and changes, so the growth of the law is attributed
to natural law. Kase when judges make landmark cases,
they often draw inspiration in natural law such as
reasonableness and common good. Hindi naman all the
time ang mga judges, dura lex sed lex. Now ito ang rule,
so yan na.
The law grows because judges make equitable
exceptions all the time. Pag nakita ng judge na yung strict
application ng law will cause injustice to the litigants, it
will not serve the ends of justice then hindi positivist and
approach ng judge. It goes back to: Is this fair? Does this
make sense? So because of those decisions that make
exceptions to the general rule then the body of law also
grows. So, in that sense, natural law is the creative force
that helps the positive law grow. Patton commented that
proud daw mga students ni Austin kase organize sila noh.
Eto yung natural law, eto yung positive law. And that the
law has an internal logic that is independent of morality.
But Patton says that the law does not exist for the sake of
consistency. Consistency is desirable but it must yield to
one purpose of law which is justice. So sometimes when
we look at the law it really is not consistent in the sense
na may general law, may exception tapos yung exception
may exceptions to the exceptions. So, for criticism ni
Patton, yung positivist they are obsessed with ordering the
law na dapat ganito na dapat ganyan lng. But that is not
the point of the law. Even it is sometimes the law is
inconsistent, magulo, may exception to the exception, and
importante at the end of the day is that justice is serve.
That is why judges make exception to the exception all
the time. The law, as an organic body, is messy, it’s not
clean, because the goal, although the idea is the law
should be in order, that is not the case. In marriage, it is
not consistent, paiba-iba, but the goal of the law is not to
be consistent but to serve justice. So, yun yung reply ng
naturalists. If consistency lang ang habol natin sa law eh
di judges will just decide based on the law regardless if it
causes injustice. And as we see in your cases, that is not
the case. Decisions are made all the time with equitable
considerations and these considerations are based on
natural law.
Finally, positivism does not address common law
jurisdictions and customary rules.
So, positivists say under the command theory that
in law there must be a command and a threat of evil if the
command is not followed. But in common law
jurisdictions where the laws are not written, how can there
be a command? In international law for example, there’s
no commanding body that dictates to countries. So how
come international law exists? What is the element of
command there? So according to critics, positivism is not
enough to explain all kinds of legal system.