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1. INTRODUCTION:

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 the Administrative, executive,

legislative, and judicial bodies.

2. SUBJECT MATTER OF THEORY

The basic questions to be asked when talking about this theory are;

 What is law?
 Is it written?
 Where does it come from?

3. EXPLANATION OF SUBJECT MATTER

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”.

4. DERIVATION OF TERM

Positivism is from the Latin root positus, which means

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 to posit, postulate,
 or firmly affix the existence of something.

5. 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

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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 varies 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).

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 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.

6. 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
depend 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.

7. SEPARATION THESIS:
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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

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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.

8. 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

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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.

9. 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, commands, 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.

10. KELSEN’S PURE POSITIVE LAW

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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.

11. 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,
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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

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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.

12. ESSENTIAL ATTRIBUTES OF THE LAW:

The law has three essential attributes, namely,

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i. the conscious formulation,

ii. generality, and
iii. 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.

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.

13. POSITIVE LAW VS. NATURAL LAW:

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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 principles 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

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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.

14. 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.

15. 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
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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.

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