Mark Ian S.

Caroro LLB

THE POSITIVIST APPROACH
It must be stated at the outset that for positivist jurisprudence there are no moral
principles that consciously precede the law. This does not mean, however, that there is a
deliberate attempt to forsake ethics in the law nor is there a conscious effort to put law and
government beyond moral evaluation. Legal positivists merely insist, if rather impatiently and
rigidly, that there is a clear-cut distinction between the legal order and the moral order.
There are two important characteral aspects of the general positivist perspective. These
characteristics are indistinctive of its critical attitude towards the idealistic concepts and views of
both the historical and teleological perspectives of the law.
A. LAW NOT A MORAL OR IDEAL CONCEPT
The first characteristic of legal positivism is its view that the law is neither a moral nor
an ideal concept. In other words, moral and ideal considerations, as a conscious endeavor, are
not significant to positive law. Indeed, positivist jurisprudence was advanced as a vigorous
reaction to the romanticism of the folk-soul (with its distinctive appeal to the venerable national
oblutiacs) and to the transcendental idealism of teleological jurisprudence (with its
characteristics deduction of rules of actions from higher law).
As stated above, the legal positivist cannot over- emphasize the distinction between the
legal order and the moral order. They are persuaded that the law that ought to be is quite
distinct from the law that is. Stated differently, the body of legal precepts has an independent
existence without regard to their moral value, although the influence of the moral order is not
denied.
They deny the use of the moral and ideal considerations in analyzing the nature of the
law. Legal positivists say that no one really knows what it is and that no one truly knows what
its manifestations are. Positivist jurisprudence reply that there are a number of conflicting ideas
about justice and equity that makes it quite difficult to accept which of these concepts is the
correct one. Besides, from the observation post of positivist jurisprudence there is a great deal
of legal rules that are actually unethical or unjust but they do not on that account alone cease
to be legal rules.
B. FREEDOM FROM METAPHYSICAL SPECULATIONS
The second characteristic of the positivist approach to the problem of the nature of the
law is its stress on the impertinence and irrelevance of the role of the natural law theory in the
legal ordering of society.
Because of its unconcealed disillusionment with the historical and teleological
perspectives of the law, the positivist school has felt all along that it is better to free the
concept of the law from metaphysical speculations. Sir John Austin, in particular, laid down the
distinction between positive law and natural law. In Austins view, for one to say, that positive
law is void if it is not in accordance with the natural law is absurd.
Thus, for positivist jurisprudence, the approach to the problem of the nature of the law
is by the way of the empirical sphere of reality the is rather than the transcendental sphere
of ideals the ought.
This aversion to the philosophy of the natural law is grounded on the view that the
ought refers to something which does not really exist. For according to this juristic
perspective, if there is such an ought it would simply be the actuality or reality of that which
needs to be. In effect, such realization would mean its own cancellation.
HOBBES-AUSTIN POSITIVISM
Thomas Hobbes and John Austin are generally recognized as the persons who
developed the concept of law in terms of legal positivism.
Laying down the groundwork for modern positivist legal theory, Hobbes advanced the
idea that it is improbable for any statute to be unjust. He wrote that 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
commonwealth. Thus, he held 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 the law.
For having power to make and repeal laws, he may when he pleases free himself from the
subjection. Hobbes further stated that to care of the sovereign belongs the making of good
laws. By a good law, he means not a just law for a law can be unjust.
Sir John Austin held that the first concern of jurisprudence in general is to understand
the nature of the law as it ..?..stands. Uniting the philosophy of logical positivism positivist
jurisprudence, Austin theorized that the law grows without any conscious regard for its
goodness or badness, whether tested by the application of the measure of utility or justice and
equity.
According to Austin, with the goodness or badness of law as tried by the test of utility
(or by any of the various test which divide the opinions of mankind) it has no immediate
concern.
Austin held that the law is distinguished from morality. That is to say, natural law is one
thing (assuming that it exists) and positive law is entirely another. And so far as the latter is
concerned, its existence is one thing, its merits or demerits another
However, this does not provide one with a ground to assume that Austin intended to
imply that positive law was non-moral. In other words, law itself may be amoral but to call it
illegal (would be ) absurd.
BASIS AND GOAL OF THE PPOSITIVIST APPROACH
In the pronounced anti-ideal attitude of positivist jurisprudence, the concepts of the
folk-soul and the natural law does not hold an exalted position over positive law.
But even positivist jurisprudence cannot exist and command respect in a vacuum. Thus,
it posits the philosophy of legal positivismthe supremacy of the law that actually exists in a
society. For positivist jurisprudence, the maxim dura lex sed lex is indeed correct. Any statute
however unfair and unjust had to be treated as law.
The drive of positivist jurisprudence is for the internal coherence and formal perfection
of the legal rules. This quest for coherence and scientific arrangement is directed towards the
goal of understanding the different aspects of the legal process without being burdened by the
vexing problem of its relation to morality or to the folk-soul. As this goal is realized, a
considerable reduction of inconsistent, conflicting, and overlapping legal precepts can be
avoided and allow for prediction of official action with greater assurance.
There are some well-known paths along which positivist jurisprudence has moved towards the
realization of this goal. John Austin, Hans Kelsen, Wesley N. Hohfeld, and Albert Kocourek were
among those who produced works on the systematic analysis of legal concepts. A great deal of
their individyal studies indeed represents an effort to clarify the meaning of legal precepts.
THE PURE POSITIVE LAW SUPPLEMENT
The legal positivism of Hobbes and Austin, however, goes only as far as rules with
sanctions or penalties are concerned. And some rules and regulations do not even have
penalties or incentives. There have been attempts to purify the Hobbes-Austin legal positivism.
One of these is the pure positive law theory. The development of the basic premise of this
theory consists of two kinds: (1) the Lausanne brand, and (2) the Vienna brand. Both were
aspired for the law purified of foreign elements. But they differed on the meaning of foreign
element. This difference may explain ironically why the Lausanne brand dropped out from favor
and why the Vienna brand has gained quite a considerable number of followers.
A. THE LAUSANNE BRAND
Instead of Roman law principles, Ernst Roguin would rather that the basis for the
development of the pure law, that is to say the purification of legal concepts and institutions,
be logically derived from certain historical phenomena. He felt very strongly that pure juridical
science is the answer to legislation and codification consistent with the culture of a people.
B. THE VIENNA BRAND
Hans Kelsen emphasized in his treatise that the concept of law has no moral connotations
whatsoever. The sole purpose of Kelsens theory is to know the subject empirically, to remove
all extraneous concepts of transcendental justice and morality out of law in order to achieve his
theory of pure law.
The Pure Law Theory takes into consideration only positive law, norms created by acts of
human beings. It does not take into consideration norms emanating from other like
superhuman, authorities. They should be ignored if law is to become a truly effective means of
social control. For just as long as these factors are part of legal or juridical positivism, the law
cannot measure to the splendid development of modern natural science after its emancipation
from political powers, and especially from the power of the Church.

CONCEPT OF LAW

One view of law is that it is a phenomenon. Kelsen holds that law is a norm or a normative
order. The distinction that Kelsen points between these views emphasizes the logical dualism of
the is and the ought in his conception of law. Kelsens attempt to harmonize the is and the
ought in his concept of pure positive law may be understood by starting with the stress he
has placed on the difference between the proposition that something ought to be or to be
done and the proposition that something is or is done. It is impossible to infer the statement
that something is done from the statement that something ought to be done.
A. Normative legal ordering

A norm in Kelsens pure positivist jurisprudence is a rule and law is a norm or a
normative order. It follows that the legal system is a hierarchy of non-contradictory legal
norms, that is to say, every norm deriving from another norm, traced finally to the
basic norm, which is the source of all norms.

B. Philosophy of empirical justice
Kelsen says the concept of justice advanced by Ulpian and Aquinas as the constant wish
or habit to give each man his due is an empty formula because even that which is due
to each man is defined by positive law. And the definition might be absurd or injurious,
thus making the justice that consists in the giving each man his due rather bad. Even
Kants powerful categorical imperative as a criterion of evaluating positive law was not
spared by Kelsen for, at one time; he considered it as a meaningless tautology.


THE LAW AS THE WILL OF THE STATE
Positivist jurisprudence seeks to eliminate this idealistic consideration by positing
the ontological concept of law, believing that in so doing, the groundwork for the
science of law may be laid. This means that the objective evaluation of the nature of law
stresses or accentuates the rules of action consciously formulated by and within the
bounds of the different branches or organs of the government of the State.
THE STATE AS THE SUPREME POLITICAL SUPERIOR
The State stands out as the supreme political superior or the collective legal
association under the rule of the majority. The legal doctrine of non-suability of the State
stems from this concept of law. The exercise or implementation of the will of the supreme
political superior through and by means of the government is not considered absolute.
Governmental challenge can be blunted, or curbed, or denied by the response of the majority of
the members of the community. This popular response in manifested in two ways. The first is
peaceful type- the electoral responses, which is periodic and set not too far apart nor too close
either. The other is the uprooting type- the revolutionary response.
ESSENTIAL ATTRIBUTES OF THE LAW
In accordance with the basic principles of legal positivism, the law has three essential
attributes, namely, conscious creation, generality, and authoritative enforcement.
Conscious Formulation Being a command, it must be consciously set or formulated as a rule
of action or norm of behavior.
Generality The rule or command must be general, that is, it must prescribe courses of
conduct or action for all members of the community or it may apply to all of a particular class of
acts, persons, or properties.
Authoritative Enforcement as a command coming from a determinate source, the law involves
a duty to obey.
HISTORICAL AND POSITIVIST VIEWS RECONCILED
Positivist jurisprudence deals with that which the State lays down consciously as
commands or norms and applied to the people, the historical school considers the direct
relationship of the law to the national or common consciousness of the people. And while the
positivist school takes as the typical examples of the law the legal rules which the State
promulgates consciously, historical jurisprudence regards customs and customary modes of
decisions as the typical example of the law.