CHAPTER III on Philosophy of Law

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LEGA
L
POSITIVISM
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LEGAL POSITIVIST THEORY

 It is the dominant for Philosophy of Law (Jurisprudence) as of

today.

 It has its name because of the word “Posit” which means…

 The idea is very basic that law is a social phenomenon, it’s a

legal system or artifacts of human creation. It is something that
human beings have created or posited into existence with their
behavior and their thoughts and their words.
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Understanding the concept of SOCIAL
PHENOMENA
 By which I mean things that depend for their existence on the thoughts and actions
of people.

 Like money, what does make it as money? How does it derives its value/status as
money?

 It depends on the continued thought every minute of people or that people think that
its money. So when you go to a store and you hand in a paper bill of 1k to pay for
something, they will accept it as valid payment for your purchase.

 But, if everyone stop caring about all paper bills, if people stop giving you things in
exchange of those bills, then it would not be money anymore.
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Therefore…

 The value of money – is a social phenomenon.

 Its existence or the fact that money has the value that it has
depends on the continued actions and thoughts of people.
However, you may ask then that money is not real?

 Money is real, its just that it is a social thing.

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Another Social Phenomenon is –
Fashion Trends
 A certain design is because people think that it is fashionable.

 Another unique phenomenon is the “elevator rule” - may be

considered as a rule of etiquette. It is a social rule and its existence
depends on people thinking a certain way. So you have to face the
elevator door or else people would think that you are weird for
facing the other way around. So people’s thoughts sustains this rule
without them even knowing it.

 Unlike a table or a chair. It is not a social phenomenon because it

remains to exist even if people disappear.
 ◤ Thesis
 According to Legal Positivism - Law is a social phenomenon.

 It is created by us, and sustain it in its existence – Legal Systems only

continue to exist because we do things and think certain things about it.
 Therefore, LEGAL FACTS that is facts about what the law is are
ultimately SOCIAL FACTS. (Ex: Anti-Jaywalking Ordinance; from
human thought to human action)
 So, in the most general terms, the positivist social thesis is that what is
law and what is not is a matter of social fact. According to Joseph Raz.
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MEANING OF POSIT IN LEGAL
POSITIVISM
 According to its ordinary meaning – we said that posit means to assume a fact; to
put forward as a basis of argument among others.

 But in Legal Positivism – the word is used in a weird way to mean “to
think something into existence”

 Therefore, Legal Positivism is saying that Law is something that

is posited into existence by human thought.
 So if we think of the most famous theories of law of the last 200 years. We can
see that many of them are just versions of Legal Positivism.
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Theories of John Austin

 His theory is a version of Positivism which he really stole

or borrowed from Jeremy Bentham.

 He explained law (legal systems) in terms of basically three

(3) ingredients:
 Issuing commands
 Threatening sanctions
 Habits of obedience
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 Austin thinks he can explain what makes a legal system exist just in terms of a
certain combination of people saying some commands (kings, sovereigns). They
have to back those orders with the threat of sanctions or punishments and then also
what makes them the law giver or the sovereign is that other people have certain
habits of obeying them.

 Meaning to say, he is explaining the Legal Systems in terms of human actions. All
the three things we mentioned earlier are actually things that people do. And for
Austin, as long as people keep on doing those things in the right combination; there
exists a legal system.
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But the more famous proponent of positivism is
Herbert Lionel Adolphous Hart or H. L. A. Hart

 He explained law (legal systems) in terms of “Hierarchy of Rules” like

social rules should have “primary” and “secondary” rules which secondary
rules are actually about the primary rules.
 He said that there are social rules, like the elevator rule we said earlier.

 Then these social rules were explained by him in terms of patterns of

behavior and attitudes. Mental States or the states of people’s minds makes
these social rules exist and as long as these social rules are arranged in a
very certain specific way, then you have a legal system.
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Hart’s Theory

 His theory, therefore, is ultimately a Psychological Theory of

Law.
 It explains the existence of legal systems in terms of
thoughts; in terms of psychology, but the thoughts and the
actions of people are actually social things meaning those are
social phenomena and so Hart’s theory is also a version of
Legal Positivism.
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Natural Law Theory

 What is the purpose of life? Does life have a meaning? We humans

often ask. We can ask the same things about the law. What is its
purpose? For what use? For what end?
 It looks into the principles, purpose, and end (telos) of the law. It
goes to the question of the why of the law. The proponents of this
school believe that the law serves a higher universal order or
"natural order," which we can discovered through our common
human reason, needs, and aspirations and validate by human
experience. It is the same with your normative jurisprudence.
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 According to natural law, nature is how people normally

behave and are expected to behave. Human nature, in
particular, is rational. The law is law as long as it pursues
the precepts of reason: reasonableness, justice, equality,
and fairness.
 Law is partly a social phenomenon but it is also partly inherently a
moral phenomenon.
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 The idea generally behind natural law theory is that legal

facts are determined ultimately by social facts and moral
facts.
 Meaning, that law only exists because it is not sufficiently
immoral.
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 St. T h o m a s Aquinas thought that morality was important for everyone and
that being a good person was a vital part of God’s plan for each of us.

 However, he also knew that not everyone was exposed to the Bible, or had
even heard of God. So what bothered him was: How could people follow
God’s moral rules – also known as the divine commands – if they even did
not know about Him who made the commandments?

 St. Thomas Aquinas just could not believe that God would have expectations
for us – if he did not also give us – all of us – a way to meet them.

 So, according to St. Thomas Aquinas, God made us humans pre- loaded with
the tools we need to know what is GOOD. This idea becomes the Natural Law
Theory.
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 So we can basically say that God is awesome, and he made you. So, you are
awesome. It’s just important that we do not forget to be awesome.

 Natural Law Theory is based on the idea that God wants us to WANT things –
specifically GOOD things.

 God created the world according to natural laws, predictable, goal-driven

systems whereby life is sustained, and everything functions smoothly.

 And this part of natural order, God made certain things that were good for his
various creatures.

 Example: Sunlight and water are good for plants; meat is good for cats and plants
are good for rabbits.

 And --- because God is awesome - he instilled all of his creatures with an
intuitive desire for the things that he designed to be best for them.
 The things that we are designed to seek are known as the basic goods – and there are seven of them.
T◤hese are: 1. Life; 2. Reproduction; 3. Educate one’s Offsprings; 4. Seek God; 5. Live in
Society; 6. Avoid Offense; and 7. Shun Ignorance.

 1. So God created us to have a natural survival instinct. We run away from danger. The fight or flight
response for example.

 2. After preserving our life – what do we do? We make more life. In short, we reproduce.

 3. Then next we need to educate those kids we just made. We bring them to school, church and any other
places for learning.

 4. Focused only on humans – our instinctual desire to seek God.

 5. Humans are naturally social animals – so it’s part of our basic good to live in community with others.
(desire for love, acceptance and susceptibility to peer pressure, are all evidence of this.

 6. We feel shame and guilt when we do things that cause our group to turn against us.

 7. We are built to shun ignorance. We are natural knowers. We are inquisitive and we want to be right
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 It means that we get to realize that our life is valuable, others therefore also have
valuable life and from there we see that killing is a violation of natural law.

 Like: Do not kill as a negative prohibition then there is a conjunction positive injunction
that we instead promote life like caring for others, do charitable works, eat healthy, etc.

 Why do still violate this natural law of seeking God and do the basic goods –
because of human ignorance and emotions
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