POSITIVIS

M
Legal
* Positus
* to posit, postulate, or
Positivis
firmly affix the
existence of something
m
 Legal
* Positivism
a school of jurisprudence
* only legitimate sources of
law are those:
written
* expressly rules,adopted,
enacted,
regulations,
or recognized by a
principles
governmental entity or political
institution, including
administrative, executive,
legislative, and judicial bodies.
 * all laws are
nothing more and
“What is
nothing less than
simply the
law?”
expression of the
will of whatever
authority created
*“legal rules or laws are
valid not because they
are rooted in moral
* law is a social or
natural law, but because
construction
they are enacted by
legitimate authority and
are accepted by the
society as such”
 History of Legal
Positivism and its
Ten
Proponents
Commandments
Emperor
Justinian
John Austin

Thomas
Command theory
Hobbesof
* “it is improbable
for any
* “to statute
Thomas
the to
care of
be
the unjust”
Hobbes
sovereign
* “laws are the
belongs the
rules of just and
making of good
unjust”
 * “dogma” of legal
positivism
John
* “command
* “The existenceofof law
Austin
the sovereign”
is one thing; its merit
or demerit is another.”
 * "prophecies of what
Justice Oliver will
the courts Wendell
do inHolmes,
Jr. fact, and nothing more
pretentious, are what I
mean by the law"
John Austin: “the
existence of the law is
Approaches to
one thing its merit or
demerit isLegal
another.
WhetherPositivism
it be or be not is
one enquiry; whether it
be or be not conformable
to an assumed standard,
* BACK TO JOHN AUSTIN
* inclusive positivism or also
* Hart: separation thesis is
known as incorporationism or soft
Separation
the essence of legal
positivism
* exclusive positivism or also
positivism
Thesis
called as the hard positivism
* the law and morality are
conceptually distinct
 Austin’s legal
positivism
* the law must be entirely free of
moral notions

* laws can, and do at least

sometimes, reproduce or satisfy
certain demands of morality

* BACK TO JOHN AUSTIN .. Again..

Thomas Hobbes’ and John Austin’s
Legal Positivism

* state is perceived as the creator

*and
law enforcer
is the expression of the will of
of the law
the state laying down the rules of
vested with the power
action upheld by force to “inflict an
evil or pain in case its desire is
disregarded”
* wrong in the expression and
enforcement of its will
no right can be claimed against it
2 WAYS OF MANIFESTING THE
POPULAR RESPONSE
AUSTIN’S COMMANDOF THE PEOPLE:
THEORY
OF LAW
1) Electoral response
- peaceable type

2) Revolutionary
response
- uprooting type
 KELSEN’S PURE POSITIVE LAW

***general
Hans
propounded the idea of ajurist
Kelsen,
theory an
of Austrian
law, not an
interpretation
and philosopher of specific
Pure Theory of Law, which is a
national or international legal
theory of Positive Law
norms; but it offers a theory of
* interpretation.
“pure” theory of law
because it aims to focus on
law alone
* aim is to free the science of law
from alien elements
 KELSEN’S PURE
KELSEN’S
NORMATIVE POSITIVE
ORDERLAW
Grand
LEGAL
Unchallengeable
Norm/Grand
Kelsen: Norm
the nature of the law
“is not simply a system of
* Kelsen: “the law is simply not pure
coordinated
* came from the norms of
collectiveequal
when cluttered with axiologicalwill,
level but a and
competence,
norms.” hierarchy
capacityof legal
of the
norms of different level.”
people
* denoteS the basic norm, order,
or rule that forms an underlying
basis for a legal system
 “is-statement” vs.“ought-
Purpose statement.”
of the Grand
Norm
- need to find a point of origin for
► “is-statement” -something is,
all law, on which the basic law and or
something is not done is expressive
constitution can gain their
of a simple reason for action
legitimacy from
► “ought-statement”
-something should be, or
*something
no longer should
depends beondone, or
the moral law
something or natural
should not be done
law for its validity
is expressive of a higher kind
of reason for action
 Functions of
*The acts of the different
Normative
branches Legal
of the government
Order
are considered as measures
1)Prescriptive
of coercion. Sanctions and
2)Authoritati
incentives are attached to a
legalve
norm. This is what
distinguishes a legal norm
3)Permissive
from other social norms.
 Essential Attributes of the
Law
1)Conscious formulation
- distinguishes a rule or norm of positive
law from a rule or norm of morality
4)Generality
- Rules or norms must prescribe courses
of conduct for all members of a society or
for all members of a class
7)Authoritativeness
- makes the law imperative and jussive,
or making it not merely hortatory or
advisory
 Positive Law vs.
Conflict
Naturalwith
LawHistorical
View
* Legal positivism is the view that law is fully
*A rule cannot be made before the
defined by its existence as man-made law. Function of
occurrence
positive of the
law is to define the facts
natural it
lawpurports
and make itto
explicit;
regulateto makeorit effective
govern. thruIn
sanctions.
the positivists
view, the act has to happen before a
* Legal positivists do
rule can be made precisely to governnot believe
init.
natural law in the legal
ordering of society because
natural law is not common to
everybody.
Critique of Legal
Positivism
•Lon Fuller
•Ronald Dworkin
- -denies
deniesthat
thethere
separation of law
can be any andtheory of
general
morality
the existence and content of law; he denies that
local- whatever virtues
theories of particular inherent
legal systems canin
identify
or followlaw without
from recourse to its merits, and he
clear, consistent,
rejects the whole institutional
prospective, and open focus of positivism
practices
can be found not only in law but
in all other social practices