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The term derived medieval use of positum

(Latin"established"), so that the
phrase positive law literally means law
established by human authority." Black's Law
Dictionary 1200 (8th ed. 2004).
Seed of Legal Positivism

Analytical Jurisprudence

Positivist Jurisprudence
 Analysis
• An explanation of the nature and meaning of
something
TELEOLOGICAL
TELEOLOGICAL
 The positivist approach
• Separation of law from moral law and from
natural law
 Moral Law

• Precepts by good and right as the basis of its

norms
 Natural Law
• Universal discipline of virtue impressed in the
heart and mind of human beings to guide
them in the exercise of their rights
 The positivist approach
• Law not necessarily a moral concept
• Uncluttered by metaphysical solutions
 Law not necessarily a moral concept

• With the goodness or badness of the 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
 Law not necessarily a moral concept

• To keep legal order apart from the perplexities

of ethics
 Uncluttered by metaphysical
speculations

• Empirical sphere of reality vs transcendental

sphere
 Uncluttered by metaphysical
speculations
• The teleological idea of a suprapositive law as
the standard of validity of positive law is
criticized as transcendental nonsense.
 “LEGAL POSITIVISM”

Thomas Hobbes John Austin

Thomas Hobbes – “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”

Improbable for any statute to be unjust

Immunity from suit of the State
• John Austin – it is absurd for one to say that
positive law is void if it is not in accordance
with the natural law
• What appears pernicious to one person may
appear beneficial to another.
• Herbert A. L. Hart –pointed out that Austin did not
say that the norms of moral law and the precepts of
natural law have NO influence on positive law.
• Huntington Cairns – one can argue that positive law
must conform to moral law and natural law but to
say that positive law is null and void simply because
it is contrary to moral law and natural law is foolish
and absurd.
POSITIVIST JURISPRUDENCE – legal rules can be
sound or silly, good or bad, so long as their
silliness or badness is general in scope, that is
to say such rules affect all persons belonging
to a particular class.
The law and the State
The Supreme Political Superior
 Essential Attributes of the law
A. Conscious formulation
B. Generality
C. Authoritative Enforcement
 Conflict with Historical View
Legal Positivism
: the historical view that the law emanates from
life and spirit of the people is ambiguous,
especially when the ELEMENT OF TIME is
taken into consideration

: a legal rule is created consciously after the

occurrence of the act or event in the future
Historical

: development of a legal rule is visible even in

retrospect

: to deal with the conflict of legal rules is to

trace it back to its simple beginning