Reporters

LEGAL Clarissa B. Marcelo

POSITIVISM Brilliant Santos

1JDE
Philosophy of Law
Bulacan State University
 Positivism

The term ‘positivism’ derives from the Latin positum, which refers to the law
as it is laid down or posited.

• Rejects the view that law exists independently from human enactment.
• Law is socially constructed.
• Legal positivism does not base law on divine commandments, reason, or

LEGAL human rights. 

POSITIVISM Developed in the 18th and 19th Century by legal thinkers such as Jeremy
Bentham and John Austin. The most prominent is H. L. A. Hart who founded
the usage of “positivism” in 1958.
 • Laws are commands of human beings.

• Legal positivism is the view that the validity of any law can be
traced to an objectively verifiable source.

• There is no necessary connection between law and morals.

• The law as laid down should be kept separate – for the purpose
MAIN of study and analysis – from the law as it ought morally to be.
In other words, that a clear distinction must be drawn between
THEMES ‘ought’ (that which is morally desirable) and ‘is’ (that which
actually exists).

• The analysis of legal concepts is worth pursuing, and distinct

from (though not hostile to) sociological and historical
enquiries and critical evaluation.
 • Pedigree Thesis

THESIS ON • Separability Thesis

LEGAL • Discretion Thesis
POSITIVISM
 • Law is a phenomenon of societies with a sovereign.
• Laws are "valid," in the sense that they exist as laws, because of certain
social facts about obedience.
• It identifies the existence of law with patterns of command and
obedience that can be ascertained without considering whether the
sovereign has a moral right to rule or whether their commands are
meritorious. 

JEREMY BENTHAM
“Law is not rooted in natural law but simply a command expressing the will
of the sovereign.”
PEDIGREE “Appeals to natural law were nothing more than ‘private opinion in disguise’
THESIS or ‘the mere opinion of men self-constituted into legislatures’.”

JOHN AUSTIN
• Command Law Theory
“Anything that is not a command is not law. Only general commands count
as law. And only commands emanating from the sovereign are ‘positive
laws’. “

Both regard the sovereign’s power as constituted by the habit of the people
generally obeying his laws.
 • It implies the existence of a possible legal system in which there are no
moral constraints on legal validity.

• Law and morality are conceptually distinct.

A. INCLUSIVE or SOFT POSITIVISM

• While a legal system is logically independent of morality, a system of

laws can nevertheless include moral components.

SEPARABILIT H. L. A. HART

Y THESIS Law is more than the decree of a gunman: a command backed by a sanction.

Every legal system incorporates secondary rules of three kinds.

• rules of change
• rules of adjudication
• rule of recognition

“There is the rule of recognition which determines the criteria by which the
validity of all the rules of a legal system is decided. “
 B. EXCLUSIVE or HARD POSITIVISM

• Denies that a legal system can incorporate moral constraints on legal validity.

JOSEPH RAZ

“The law is autonomous: we can identify its content without recourse to morality. “
The content of law, can be determined by a factual enquiry about conventions,
institutions, and the intentions of participants in the legal system. 

SEPARABILIT Identity and existence of a legal system may be tested by reference to three elements;

Y THESIS efficacy, institutional character, and sources. Law is thus drained of its moral content,
based on the idea that legality does not depend on its moral merit. The answer to the
question ‘what is law?’ is always a fact. It is never a moral judgement.

Law as authoritative is the fact that it is able to guide our behaviour in a way that
morality cannot do.
 B. EXCLUSIVE or HARD POSITIVISM

HANS KELSEN

In his complex ‘pure theory of law’, this excludes those which we

cannot objectively know, including law’s moral, social, or political
functions. Law has but one purpose: the monopolization of force.
SEPARABILIT Law for Kelsen is considered to be a system of ‘oughts’ or norms.
Y THESIS which include judicial decisions and legal transactions such as
contracts and wills. And that law needs to be cleansed out of  the
impurities of morality, psychology, sociology, and political theory.
 • Holds that judges are empowered to create new laws, or at least binding legal
statements, to help decide a case that does not fall under a clear, pre-existing
law.

• When a judge introduces some new consideration in the application and

adjudication of law, that consideration attains the same kind of status as a
constraint on the judgments of future judges.

• Thus, judges, as well as legislatures, continually add claims to the body of

positive law without having to introduce extra-legal or moral principles.

DISCRETION RONALD DWORKIN

“Law as an interpretative concept”
THESIS Hard Case
The ideal judge – whom Dworkin calls Hercules – must ‘construct a scheme of
abstract and concrete principles that provides a coherent justification for all
common law precedents and, so far as these are to be justified on principle,
constitutional and statutory principles as well’. Where the legal materials permit
more than one consistent interpretation, Hercules will decide on the theory of
law and justice which best coheres with the ‘institutional history’ of his
community.