POSITIVIST SCHOOL

Group 3
Angelique Solis
Sarah Mae Bogador
Nizzane Vico
 The Positivist School

 Also known as the Imperative School (early 19th

century)
 Represents a reaction against the previous methods
of thinking
 Whether a society has a legal system depends on
the presence of certain structures of governance,
not on the extent to which it satisfies ideals of
justice, democracy, or the rule of law.
 It implies that legal rules 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.
John Austin (1790 - 1859)
 Born to a Suffolk merchant family
 Spent five years in the army during the
Napoleonic Wars
 He turned to law and spent seven
unhappy years practising at the
Chancery bar
 He was appointed professor of
jurisprudence at the newly
founded University of London in 1826
 Aside from two stints on government
commissions, Austin lived largely on his
wife's earnings as a writer and
translator.
 Austin wrote little after the publication
of his major work, The Province of
Jurisprudence Determined (1832).
 2 Types Of Laws

DIVINE LAW
- laws of God; laws which are set by God to his human creatures

HUMAN LAW
- man-made law; laws set by men for men
 2 Types of Human Laws

 laws so properly called (Positive Law)

laws set by political superiors to
political subordinates

 laws improperly so called (Positive

Morality)
those laws which are not set
directly or indirectly, by a political
superior, e.g. rules of clubs, laws of
fashion, the rules of so called international
law etc.
 Positive Law

LAW
“a rule laid down for the guidance of an intelligent being by an intelligent being having
power over him”.
“command of the sovereign”
Instead of being based on ideas of good or bad, it is based on the power of the
superior.
 Law is strictly divorced from justice.
 He made a distinction between law and morality.
 Command Theory

LAW
“command of the sovereign”
“Commands” involve an expressed wish that
something be done, and “an evil” to be imposed if
that wish is not complied with.
- expressions of desire that another shall do or
forbear from some act and are accompanied by a
threat of punishment (the “sanction”) for
disobedience.
 The more severe the punishment (sanction) is,
the greater the efficacy of the command.
- It creates a greater sense of
obligation (duty) to follow.
Sanction
There must be a provision of punishment In
case a law is disobeyed. There cannot be a
law without punishment.
Duty
As a law is a command of sovereign, it is a
duty of everyone to obey it.
 Command, duty, and sanction are
inseparably connected terms.
A command generates a duty for fear of a
sanction.
LAW
“command of the sovereign”

SOVEREIGN
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.
Is factually determinable and legally
unlimited.
 Switzerland General Insurance Company, LTD., vs Republic of
the Philippines

 SS ‘Pioneer Mart’ delivered 7 drums and 4

bags of raw materials for paint manufacture
to the Customs Arrastre Service (CAS) at
the Port of Manila
 The cargo was delivered by CAS to its
consignee Ed. A. Keller and Co., LTD of
Manila
 Cargo sustained damages in the amount of
₱834.25
 Switzerland General Insurance paid the
amount to the consignee
 CAS refused to pay despite demands
 Filed a suit in the City Court of Manila
ISSUE: WON the State can be sued without its consent.
HELD: No.
LAWS , CASES , AND PRINCIPLES CITED:
Doctrine of Non-suability of the State or Doctrine of Sovereign Immunity
A sovereign is exempt from suit …on the logical and practical ground that there can
be no legal right as against the authority that makes the law on which the right
depends. (Justice Holmes)
- Recognizes the sovereign character of the state and insulates it from the jurisdiction
of the courts
Providence Washington Insurance Co. vs Republic
Doctrine is necessary to prevent any disruption of the governmental functions
which would cause great inconvenience to the public.
State would spend considerable time and resources defending itself from suits if the
doctrine is not applied.
Act. 3083
No injustice is caused to Switzerland Insurance because it can still recover by
presenting its claim to the Auditor-General (ACT no. 3083)
Any difficulties the petitioner might have incurred is minimal when pitted against the
State which has to take in great consideration the public welfare.
 FIN
THANK YOU!
 Singapore

The maximum fine for littering is $2,000

for the first conviction, $4,000 for the
second, and $10,000 for the third and
subsequent convictions.
Third-time offenders face the possibility
of jail time.
“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 vary from the text, by which
we regulate our approbation and disapprobation.”
North Korea
Carrot vs Stick
  Previous philosophers dwelled more on the principles of law
 Whether a society has a legal system depends on the presence of certain
structures of governance, not on the extent to which it satisfies ideals of justice,
democracy, or the rule of law.
 The fact that a policy would be just, wise, efficient, or prudent is never sufficient
reason for thinking that it is actually the law, and the fact that it is unjust, unwise,
inefficient or imprudent is never sufficient reason for doubting it.
 His influential friends (who included Jeremy Bentham, James Mill, John Stuart Mill
and Thomas Carlyle) were impressed by his intellect and his conversation, and
predicted he would go far. However, in public dealings, Austin’s nervous disposition,
shaky health, tendency towards melancholy, and perfectionism combined to end
quickly careers at the Bar, in academia, and in government service (Hamburger
1985, 1992).
 When Commands Become a Rule/Law

Rules are general commands (applying

generally to a class), as contrasted with
specific or individual commands.

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.
 • Ernst Roguin of the University of
Lausanne, sought the purification of
positive law on the basis of creative
thinking.

* Ernst Roguin felt very strongly that the answer to the problem of the validity of
positive law lies in pure juridical science consistent with the culture of the people.
 • Almost a quarter of century after, Hans
Kelsen developed “Pure Positive Law”
Theory.

• Kelsen simply removed from the concept

of law any moral implications.

*Kelsen’s concept of “pure positive law” simply dropped Austin’s

qualifying adjective “immediate” and posited the idea that “the
concept of law has no moral connotations whatsoever”
Reason: For Kelsen, the axiological
or metaphysical ideas are not legally
coercive.

The law is simply not pure when

cluttered with axiological norms.

• Thus the validity of the norms of positive law no longer depend on their correspondence
with ethical norms or precepts of natural law.

• This is what Kelsen means when he posits the idea that the concept of law has no moral
connotations whatsoever.

• The Law is indeed separate from moral law and natural law.
“the pure positive law theory considers
only human norms, not norms coming from
other superhuman sources”

• 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.
 Purification of Positive Law

* Hans Kelsen emphasized that the process is simply an inquiry into the nature of the
law as it is, in as much as the same manner as the natural sciences are studied.

* Hans Kelsen states that the nature of law must be presented empirically, that is to
say it must stand on its own merit without make-up of axiological ideas, and that
the law must not be politicized because in the clash of diverse political values it is
the law that is compromised and invariably loses its power as a means of social
control.
 Normative Legal Order

• Hans Kelsen postulates the nature of

pure positive law as a hierarchy of Norms
non-contradictory norms finding their
force, influence and validity on the Norms
grand, unchallengeable norm.
Norms

• This means that the nature of law “is not simply a system of coordinated
norms of equal level but a hierarchy of norms of different levels.
* If the law were a system of coordinated norms of equal level only, then, legal
norms would not be positive or jussive and would be hard put to serve as guides to
the legal ordering of society.

* According to Hans Kelsen, the grand and legally unchallengeable norm, or simply
the grandnorm, “is not the product of free invention nor is it presupposed
arbitrarily”. The grandnorm is conceived by the collective will, capacity and
competence of the people free from axiological ideas.
 “is-statement” vs. “ought-statement”
* “is-statement”- that something is, or something is not
done is expressive of a simple reason for action.

• “ought-statement” – that something should be done, or 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.
* Thus, in the normative legal order, the jussiveness of a legal norm is not only
preserved but its functions are also clarified, namely,
1. The prescriptive function ordaining persons to give, to do or not to do something;
2. The authoritative function delegating to persons the power to issue rules and
regulations implementing some prior legal norm;
3. The permissive function allowing persons to give, to do or not to do something.
* When the different branches of government act, their actions are
measures of coercion.
* There are sanctions and incentives or both annexed to the legal
norm.

• By this very fact and only by this fact that the legal norm is distinguished from social
norms.
• If the law is not considered as a hierarchy of non-contradictory norms, then the law
cannot be perceived as pure and positive, that is to say normative or jussive.
• Because of the jussive nature of the law the members of society are obliged to conduct
themselves in the manner prescribed, or authorized, or permitted by legal form.
• They should obey the legal norm or otherwise suffer the consequences.
 Empirical Justice
* Hans Kelsen simply has no place in his philosophy of pure positive law for any
concept of justice with axiological underpinnings to evaluate the soundness of the
legal norm defining what is due to every person.
* Kelsen was after justice that is “real and possible”
* Justice is real and possible when it is appropriate to the evil which society has a
right to avoid in the first place.
*

Introduction to the Principles of Morals and Legislation: Philosophy

of Human Conduct
(Readings in Legal Philosophy by Jorge Coquia
p 104-113)
Founder of English Utilitarianism
Author – An Introduction to the
Principles of Morals and Legislation
(Utilitarian Principle)
- Chapter 1 Principle of Utility
- Chapter 2 Principle of Adverse
to that of Utility
- Chapter 3 Sources of Pain and
Pleasure
- Chapter 4 Measuring Pleasure
and Pain
*Utilityis the sum of all pleasure that results from action;
minus the suffering of anyone involved in the action (greatest
good of the greatest number) – J. Bentham
*Is an ethical theory that states that the best action is the one
that maximizes utility.
*It determines right from wrong by focusing on outcomes.
*Hedonistic theory of well-being: pleasure is good; pain is bad.

*
*
*Nature has placed mankind under the governance of two sovereign
matters, Pain and Pleasures.
*Approves or disapproves of every action whatsoever, according to the
tendency which it appears to have augment or diminish the happiness
of the party whose interest is in question.
*It is vain to talk of the interest of the community, without
understanding what is the interest of the individual.

*
 *I ought do that act which will bring about
the greatest happiness (pleasure) for the
greatest number of persons (the
community).
*Greatest Happiness Principle

*
*Bentham claims that a principle may be different from the
principle of utility in two ways:
- opposed to it: like asceticism, the view that pleasure is
bad and pain is good
- it could be no principle at all: like the “principles” of
sympathy and antipathy, where what is good or bad is just what
strikes each person as good or bad.

*
*Bentham contends that asceticism is the result of a
mistake: in observing that many pleasures, when
overindulged, cause more pain than pleasure, ascetics
conclude that all pleasure is bad.

*Bentham contends that if only a tenth of being on earth

really subscribed to asceticism even for a day, they would
turn Earth into a hell.

*
*
*Bentham accuses politicians and popular figures
subscribing to this principle, rather than any consistent set
of values.

*Sympathy/Antipathy are simply arbitrary, and are no good

basis for morals and legislation.

*
*Physical – when a punishment or reward is caused by one’s
own action.
*Political – when punishment or reward is caused by the
law.
*Morals – when punishment or reward is socially inflicted
(by other people).
*Religious – when punishment or reward is caused by God.

*
*In outlining the previous, Bentham has a particular goal; to
demonstrate that utility is the best principle to base morality
and the law off of.
*It is better than asceticism or sympathy/antipathy, and can
influence all human behavior through the sources of
reward/punishment.
*What remains to be explained is how to apply the principle of
utility.

*
 *Hedonic Calculus:
Total Pleasure/Pain can be calculated using the following parameters:
1. Intensity: How intense is the pleasure/pain be?
2. Duration: How long will the pleasure/pain last?
3. Certainty: How certain will the pleasure/pain be?
4. Propinquity: How near in place and time will it be?
5. Fecundity: How likely is it to generate the same?
6. Purity: How much pure pleasure/pure pain is it?
7. Extent: How many people are affected?
*
*
PROS CONS

1. INTENSITY

2. DURATION

3. CERTAINTY

4. NEAR

5. FECUNDITY

6. PURITY

7. EXTENT

TOTAL
*