CHAPTER 3: THEORIES OF LAW beneficence, equality, truthfulness, and

respect for human dignity. These

a. Natural Law
principles guide the creation of ethical
b. Positive Law
and legal systems that promote justice,
c. Legal Realism
fairness, and the common good.
d. Critical Legal Studies/Theory
(SECULAR)

A.) NATURAL LAW

B.) POSITIVE LAW
- As a legal philosophy: Is the idea that
- Refers to a set of rules and regulations
certain moral principles are inherent in
created and enforced by human
human nature and the natural order of
authorities, such as governments or
the world.
institutions.
- In General Principle: It is wrong to harm
- Unlike natural law, which is based on
others or take what is not yours.
moral principles or inherent human
- Natural Law suggests that if human-
rights, positive law is not concerned
made laws contradict this universal
with morality.
moral principle, they are unjust and
- It is explicitly made by people and can
should no be followed.
be change or updated over time to
- It provides a foundation for human
adapt new circumstances or needs.
laws, which should align with these
inherent moral truths to be just and LEGAL POSITIVISM
legitimate.
- Is an approach to interpreting law in
- Based on morals and reason.
positive terms, meaning it deals only
TWO KINDS OF NATURAL LAW with matters of fact and experience,
with no room for doubt, as opposed to
1. Secular Natural Law
speculative or theoretical concerns.
- Recognizes inherent moral principles
- The genesis of legal positivism can be
through reason, rather than divine
traced to empiricism, the notion that
revelation or religious doctrines.
the validity of facts comes from those
- Grounded in reason and human nature,
experienced by our senses.
emphasizing universal moral principles
accessible through rational thought. BASIC TENETS
2. Religion-Based Natural Law
- Law as a Command – Law is a command
- Connects these moral principles to
issued by a human sovereign
divine will, believing that these rules are
- Positive Study of Law – Law should be
given by a higher power and often
studied as it is (Positively), dealing only
found in religious texts.
with matters of fact and experience,
- Also incorporated into various
rather that what it ought to be
traditions, such as the views of Thomas
(normatively)
Aquinas who argued that natural law is
- Separation from Morality – Law is
part of God’s eternal law, accessible
distinct from morality and does not
through human reason.
inherently involve ethical
- The right to life is deeply rooted in the
considerations.
inherent dignity of the human person
- Independence from Sociology and
stemming from our capacity for rational
History – The study of legal concepts is
thought, moral action, and the pursuit
independent of historical, sociological,
of collective well-being.
or societal concerns.
JOHN LOCKE’s NATURAL RIGHTS - Self-Sufficiency of the Legal System –
The legal system is self-sufficient and
- Right to life, liberty, and property. These
judges should make decisions based
are fundamental due to human
solely on the law, without regard to
rationality and moral capacity.
social concerns.
- Key principles: Right to life, liberty,
-
property, justice, non-maleficence,
COMMAND THEORY justice and fairness since they are not
moral or social norms without legal
- John Austin’s Command Theory is a
authority, but are every bit as much as
cornerstone of legal positivism. It
the law itself.
asserts that laws are commands issued
3. The Separability Thesis
by a sovereign to the governed, backed
- Asserts that the law and morality are
by the threat of sanctions or
conceptually distinct.
punishment.
- The definition of law must be entirely
- Has been rendered less relevant by the
free of moral considerations.
advent of modern democracies where
the true political superiors are now the CRITICISMS AGAINST SEPARABILITY THESIS
people.
- Criticized by contemporary theorists
- In this context, laws are directives given
saying that the law cannot be
by the sovereign, and their validity
segregated form morality because
depends on their enforceability through
people’s lives are directly affected by
coercive measures.
the laws enacted by the sovereign
- It emphasizes a clear separation
superior on a daily basis.
between law and morality.
- From the lens of modern democracy
THE THEORETICAL CORE OF POSITIVISM and constitutionalism, the Positivist
CONSISTS OF THREE THESES ABOUT THE movement is becoming less relevant
NATURE OF LAW: because it separates itself from morals.

1. The Pedigree Thesis THEORY OF PRIMARY AND SECONDARY RULES

- it posits that the legitimacy of a law is
- The most important part of legal
determined by its source and the
positivism is the separation between
process by which it was enacted.
morals and laws.
- A law is valid if it is established by
- Since morality is taken out of the
recognized authorities and follows
equation, an immoral thing does not
proper procedural norms, irrespective
become illegal unless it is written down
of its moral content.
as a law.
2. The Discretion Thesis
- This asserts that In the practice of law, PRIMARY RULES
there will inevitably arise a situation
which an issue would lie outside the - Will create obligations or govern
established principles of law, hence conduct.
there would be no law to govern the - They are duty-imposing rules.
said issue. - They impose certain specific duties
- The judge is left, with discretion to upon the citizens of a State to act in a
make a choice and must engage in certain manner.
creative or legislative activity. - They are generally what the citizens
mean when they refer to something as
DWORKIN’S LEGAL PRINCIPLES “the law”
- This notion that judges have the SECONDARY RULES
discretion to legislate has been
challenged by Ronald Dworkin who bars - Govern the procedural methods by
the possibility that a judge has which primary rules are enforced and
discretion like a legislator. prosecuted.
- He explains that when judges are - They also help in adjudicating,
making determinations, they are always identifying and changing laws.
constrained by the law; they are never - They are “power-conferring rules”
free to go outside the law to make a - They are not really commands, rather
creative legislative choice. specify the ways in which the primary
- It asserts that judges should take into rules may be conclusively ascertained
account principles or standards of (rule of recognition), introduced,
eliminated, varied (rule of change) , and
 the fact of their violation conclusively - Wants to examine the relationship between
determined (rule of adjudication). law and society.
- Secondary rules are rules about primary
rules.

THREE TYPES OF SECONDARY RULES

1. The Rule of Recognition

- This pertains to the rule to check what
the primary rules of a society are.
- It follows that the rule of recognition is
the actual and accepted basis for saying
that a law is a valid law.
2. The Rule of Change
- The rule by which existing primary rules
might be created, altered or deleted.
- These are necessary to efficiently allow
primary rules to be amended.
- They specify how primary rules may be
changed.
3. The Rule of Adjudication
- The rule by which the society might
determine when a primary rule has
been violated and prescribe a remedy.

Legal Formalism – A specie of positivism

according to which the law is always clear and,
however unjust, must be strictly enforced by
officials or obeyed by subjects. Also called
Ideological Positivism.

C. LEGAL REALISM
- Is based on the theory that all laws derive from
prevailing social interests and public policy.
- One can never be sure that the facts and law
mentioned in the judge’s decision were the
actual justifications for his judgement.
- Oliver Wendell Holmes Jr.’s Prediction Theory
of Law, one can predict how the court will
behave based on realistic, even moral or biased,
considerations.

D. CRITICAL LEGAL STUDIES/CRITICAL LEGAL

THEORY
- Is a theory that says that the law is neither
neutral nor value free but is in fact inseparable
from politics.
- Influenced by political activism of the mid-
twentieth century in the US.
- It posits that there is a need to constantly
critique the law because the law tends to be
couched in terms that will work to the
advantage or those in power even when the law
appears to have been enacted to benefit the
weak and marginalized.