Legal Philosophy: Historical School

http://attylaserna.blogspot.com/2007/10/legal-philosophy-historical-school.html

I wrote this short paper in 1998 as part of my Ll.M. course on Legal Philosophy. The LAWYERS REVIEW had
published it.

THE "HISTORICAL SCHOOL" OF LEGAL PHILOSOPHY :

ITS RELEVANCE TO THE PHILIPPINES

by:

Atty. MANUEL LASERNA JR.

THE THESIS OF THE PAPER

The author is of the view that the "historical school" of the philosophy of law is
the most relevant school of thought in the Philippine setting, for the reasons described
in this paper.

REFERENCES

The author made use of the following references:

1. Pascual, Crisolito, LL.M. INTRODUCTION TO LEGAL PHILOSOPHY. Quezon

City: UP Law Center, 1972.

2. Hall, Jerome. READINGS IN JURISPRUDENCE. Indianapolis: The Bobbs

Merill Co.

3. Friedman, Lawrence M. THE LEGAL SYSTEM: A SOCIAL SCIENCE

PERSPECTIVE. New York: Russell Sage Foundation.

4. Hibbert, W. Nembhard. JURISPRUDENCE. London: Sweet and Maxwell Ltd.,

1932.
FOUNDERS OF HISTORICAL SCHOOL

In terms of chronology the historical school was preceded by the philosophical

school or the natural law school. In fact, the historical school was a reaction to the
philosophical school or natural law school (Pascual, 71).

The founders of the historical school were Prof. Freidrich Karl von Savigny and
Prof. Eichhorn, who taught law and jurisprudence at the University of Berlin in the early
part of the 19th century (id., 70).

ORIGIN OF LAW: COMMON CONSCIOUSNESS OF THE PEOPLE

In his book On the Vocation of our Age for Legislation and Jurisprudence, published in
Germany in 1814, Prof. Savigny, the leading voice of the historical school, wrote of the
"common conviction" and "kindred consciousness" of the people as the origin of law:

In the earliest times to which authentic history extends, the

law will be found to have already attained a fixed character,
peculiar to the people, like their language, manners and
constitution. xxx These phenomena xxx are but the particular
faculties and tendencies of an individual people xxx. That
which binds them into one whole is the common conviction
of the people, the kindred consciousness of an inward
necessity xxx.

xxx.

The sum, therefore, of this theory is, that all law is originally
formed in the manner, in which, in ordinary but not quite
correct language, customary law is said to have been
formed: i.e., that it is first developed by custom and popular
faith, next by jurisprudence, -- everywhere, therefore, by
internal silently-operating powers, not by the arbitrary will of
a law-giver.

xxx.

(Hall, 87-88; underscoring supplied)

CRITICISM OF THE NATURAL LAW SCHOOL

Prof. Savigny did not believe in the concept of "universality" of law, which is, next
to "pure reason" or "rationalism", the main foundation of the theory of the natural law
school. On the contrary he held the theory that law is "particular or peculiar" to a people,
whose customs, history and culture may be different from those of other peoples and
cultures in the world.

xxx The historical spirit, too, is the only protection against a

species of self-delusion xxx, namely, the holding that which
is peculiar to ourselves to be common to human-nature in
general. Thus, in times past, by the omission of certain
prominent peculiarities, a natural law was formed our of the
(Roman) Institutes, which was looked upon as the immediate
emanation of reason. There is no one now who would not
regard this proceeding with pity; and yet we meet with
people daily, who hold their juridical notions and opinions to
be the offspring of pure reason, for no earthly reason but
because they are ignorant of their origin. xxx. (id.)

NATIONAL MIND AND SPIRIT OF THE PEOPLE: ORIGIN OF LAW

Prof. G. F. Puchta, author of the book Outlines of Jurisprudence as the Science

of Right - A Juristic Encyclopedia, published in Germany in 1887, and a disciple of the
historical school, speaks of the "national or popular character", "common
consciousness" and "national mind or spirit of the people" as a basis of the origin,
growth and development of law and jurisprudence:

(NOTE: The use of the word Right, with capital R, in the following
quotations, refers to Law and Jurisprudence, as used by Prof. Prachta,
infra).

xxx.

The Peoples are themselves to be regarded as different individualities, dissimilar and

unequal in nature and tendency. This individuality forms what we call the national or
popular character. Hence the Rights of peoples are different; and the peculiar
characteristics of a national are exhibited in its System of Right, just as in its Language
and Customs.
All human Right presupposes a common Consciousness as its source. A principle of
Right becomes a fact by being recognized as such in the common conviction of those to
whom it is applicable. Right is the common will of the persons or members who are
included in a sphere of Right. Through this common consciousness of Right, as by
common Language and a common Religion, the members of a people are bound
together in a definite union. This union rests upon a certain relationship of body and
mind; its extends beyond the intimacy of the inner family bond, and arises out of an
actual division of the race of mankind. The consciousness which permeates the
members of a people in common xxx constitutes, in a word, the national mind or spirit of
the people; and it is the source of human or natural Right, and of the convictions of
Right which stir and operate in the minds of the individuals.

The consequence of this mode of origination induces a diversity of Right among the
various peoples. xxx.

The Conviction of the People, as reflected in the Consciousness of its members, is the
first of the modes in which Right arises, because it stands nearest to the primary source
of all human Right, and is immediately connected with it. xxx. It has thus the property of
a common practice or Custom; and hence the Right that has arisen in this form is called
CUSTOMARY RIGHT.

xxx (The System of Right) develops with the People. It attaches itself to the national
character at its different stages of culture; and it adapts itself to the changing wants and
requirements of the People. xxx.

(id., 89-91; underscoring supplied).

ROMANTIC MOVEMENT AND VOLKSGEIST AND VOLKSRECHT

Prof. Ernest Barker, discussing the roots and theoretical foundation of the
historical school in his book Introduction to Gierke, Natural Law and the Theory of
Society, published in Cambridge in 1934, wrote:

The beginnings of the School of Historical Law in Germany

are rooted, in their immediate origins, in a reaction against
Natural Law - a reaction against its rationalism, against its
universalism, and against its individualism. Instead of pure
ratio, xxx, there was to be substituted the Volksgeist xxx.
 Law, on this view, is essentially Volksrecht: it is the product
of each nation, of the national genius. xxx. (id., 91-92).

Prof. Barker, summarizing the theory of the historical school, writes that the roots
of the historical school may be traced to "the Romantic movement xxx as early as
1770"; that the historical school is "a philosophy of the Folk (people)" expressed in folk
songs, folk tales, language, and literature.

FOLK-SOUL AND FOLK-MIND

The German word Volks means sambayanan, people or nation. Volksgeist

means the diwa ng sambayanan. Volksrecht means kautusan ng sambayanan.

Filipino legal-philosophy author Prof. Pascual summarizes the volksgeist and

volksrecht thus:

xxx The folk-soul, i.e., the life and spirit of the people, which
is the basic foundation of historical jurisprudence, provides a
sense of beginning and unfolding of law. xxx . And in relation
to positive law, the concept of the folk-soul takes on the form
of a theory of what positive law ought to be, which is to say
that positive law should be a reflection of the common
consciousness and spirit of the people. In the words of Emil
Lask, even social values proceed from the substratum of the
folk-soul.

xxxx

From the observation post of historical jurisprudence, the law

is not universal, that is to say, there is not only one and the
same law for all peoples everywhere. xxx. (Law) is only
national; it is xxx oriented to the time, place, character,a nd
individuality of a particular people. The reason for this is that
social milieu varies from time to time, from place to place,
and from people to people. Like a people's language and
other cultural attributes, which are not found in others, the
 law is the product of the genius or intelligence of that group
of people. In the words of Sir Henry Summer Maine, the
acknowledged leader of historical jurisprudence in England,
the law is the product "of the huge mass of opinions, beliefs,
superstitions, and prejudices of a people produced by
institutions of human nature reacting upon one another. In
different words, law of a group of people is peculiar only to
that group. xxx.

xxx

(Pascual, 71-96; underscoring supplied).

OBLUTIACS: ACRONYM FOR THE ELEMENTS

OF VOLKSGEIST AND VOLKSRECHT

Constituting the folk-soul or folk-mind of a people are their OBLUTIACS, an

acronym which, according to Prof. Pascual, means the people's: Opinions, Beliefs,
Longings, Usages, Traditions, Idiosyncracies, Arts, Customs, and even
Superstitions. (id.).

PHILIPPINE FOLK-SOUL AND FOLK-MIND

Applying the analytical perspective of the historical school to the origin, growth
and development of Philippine law and jurisprudence, this Report extensively
quotes Prof. Pascual on his discussion of the elements of the folk-soul:

The folk-soul is composed of several elements. Each

element is a treasury of the national character of the people.
Together they form the common consciousness and
intelligence of the people. Together they reveal the people's
cultural identity. xxx.

1. Folklore

This element is composed of the beliefs and traditions of a

people. They constitute of the folk learning or folk wisdom
(paniniwala) xxx.

The folklore may survive in the form of epic tales, which are
very rare. A good example in the Philippines is the epic of
Ibalon, xxx an ancient narrative of the various phases of the
early life in the Bicol region during the reign of Handiong.
xxx. There are others, like the Darangan, notably the
Indarapatra, the epic of the Muslims of Lake Lanao; the Biag
ni Lam-ang, the epic of the Ilocano region; the Tuwaang of
the Bogobos of Davao; the epic of the Bornean colonizers of
the Island of Panay, which is recorded in the Maragtas,
where Datu Sumakwel's code of laws is found. xxx.

But a great deal of people's beliefs and traditions have

survived in the form of telling parables (talinghaga) and
riddles (bugtong).

(id.,; underscoring supplied).

2. Folksaying

This element of the folksoul is composed of the opinions xxx,

the rural reflections of a people. xxx.

The folksaying is composed of the proverbial maxims

(salawikain) and sentiments (sabi) of the people. Maxims are
short pithy statements containing a general doctrine or truth.
Sentiments are more or less the settled sense of the people.

xxx.

3. Folkway

xxx It is composed of usages and customs.

Folkways or kaugalian are rational and widespread habitual
courses of actions or practices (ugali) which have been
followed and enforced by a group of people. xxx.

xxx Thus in the early times, folkways provided the first

sources of rules xxx. The obligatory nature of the folkways
stems from the deep-seated desire of the members of the
group to keep the respect and esteem of the group by
upholding them. xxx. Thus, folkways or kaugalian have
become definite norms of activity and conduct. xxx.

4. Folksong

xxx This form of expression of a people's interests and

feelings contains their rejoicings (diyuna), lamentations
(panaghoy), longings (mithi), and aspirations (adhika). xxx.

5. Folkdance

xxx It is possible that they were regarded as religious

ceremonies in the beginning. xxx.

xxx There are appropriate folk dances dedicated tot he

people's object of reverence and awe; folkdances which
have to do with ceremonials like war or hunting; folkdances
connected with celebrations or play like wedding or
thanksgiving; folkdances related with work like planting and
harvesting; and folkdances which have to do with love and
affection like dances of courtship, rejection, or fertility. xxx.

6. Folkart

xxx This category, broadly known in Pilipino as sining, is

composed of the skill and art peculiar to a people. xxx. To a
great extent the first objects were basically utilitarian or
symbolic. Later came the objects of beauty and color. xxx.

(id., 92-95; underscoring supplied).

BACKBONE OF THE HISTORICAL SCHOOL

Pascual writes that from the viewpoint of the historical school there are two
important points that stand out:

First, the state is regarded as the highest expression or

personification of the volksgeist or diwa of the people.
Second, the law lis found and not deliberately made. (id., 86;
original underscoring by the author).

THE STATE: HIGHEST PERSONIFICATION OF THE

FOLK-SOUL AND FOLK-MIND

As human relations progressed from family or clan to community and further to

large-scale territory, a sense of national awareness grew among the people, "where the
individual, without shedding his narrower relationship with his family and region,
became related, and, in certain instances, even subordinated, to the national interests."
(id., 87).

Following the above-mentioned pattern of expansion of human relations of the

people, the process of keeping peace and order grew apace with it. At the family-clan
level, a direct appeal to the head of the family or clan was enough to resolve human
conflicts. As progress continued, something like a communal type of dispute resolution
mechanism emerged. Eventually, as progress became more complicated, the pattern of
dispute resolution and maintenance of peace and order gave way to the more complex
machinery of the body politic, i.e., the State with a national government, where the reins
of government were placed in the hands of, and practiced by, a professional group in
the community and where the people were bound by common centers of interests and
purposes.

xxx The State is thus considered as the highest expression

of the folk-soul or diwa of a people. Indeed, it is the highest
national structure erected by the socio-political development
of the people. In another way of saying it, the body politic is
 considered by historical jurisprudence as the final juristic
personification of a nation or people.
(id., 87-88, citing Prof. Puchta, who wrote that "the institution
of the State is the highest act of a people.").

LAW IS HISTORICALLY DETERMINED

In the view of the historical school, therefore, "the law is not deliberately made by
the effort of human reason, but is the product of common conviction xxx, the folk-
soul (which) awakens this conviction xxx, and (that) the law is historically
determined." (id., 88). In the words of Mr. Justice Cardozo, "history built up the
system and the law that went with it." (id., 89). Quoting Dean Pound, Pascual
writes:

xxx Reason alone cannot work miracles in legal

development nor work wonders in constitution making,
decision making, codification, or legislation. The growth of
law is a historical process. It does not proceed from the
peremptory or arbitrary will or wish of the legislators or
judges. xxx.

(id, 88, citing Dean Pound, 36 Harvard Law Review, 802,

822 [1923]).

RELEVANCE AND APPLICABILITY OF THE HISTORICAL SCHOOL

TO THE PHILIPPINE SETTING

Law is an experience and it relates to human life (folk-soul and folk-mind) itself; it
is found, not imposed. This is the most fundamental precept of the historical school.

"Asian values" differ from those of the Western world.

 Despite the fact that for a while since 1946, the Philippines has suffered from
"identity crisis" brought about by more than three centuries of Spanish colonization, fifty
years of American rule, and five years of Japanese regime, it is safe to say that at the
present stage in its contemporary political and legal history the Philippines, as a nation-
state, has achieved a remarkable degree of maturity, self-confidence, direction and
vision.

The Philippine knows its roots. It know that its people must share common values
and a common national vision if it were to continue to grow and mature as a nation.

It knows that its legal system ought to be based on the thoughts of its heroes and
founding fathers (its nationalistic sense of achieving its own destiny as a people) and
that it must be founded on the spirit of its shared cultural values, i.e., its "oblutiacs" and
national consciousness or national spirit, which its people have shared, lived and
practiced since time immemorial -- among fellow Asians, long before the Westerners
"discovered" Asia.

However, the Philippines also knows that -- in the light of current trends towards
globalization, whereby the whole world begins to shrink into one small global village
whose constituents must interact with and learn from each other if the world were to
grow and survive in peace and stability -- it must be open to other schools of thought in
legal philosophy and, in fact, in all other areas of human life.

A legal system that is divorced from the spirit and the soul of the people, one that
is dictated upon on the people without their consent, is destined to be rejected by its
supposed beneficiaries and its supposed source of sovereignty.

The law is the very identity, the soul, the spirit and the core of the people. It thus
must harmonize in a beautiful cultural and philosophical symmetry with their oblutiacs.
Otherwise, it is doomed to fail, to be forgotten, to be ignored, to be rejected -- and,
worst, to be a cause for rebellion and dismemberment of the nation, instead of being its
unifying and stabilizing fiber.

The Philippines is a multi-cultural society, with at least eight major dialects

(Tagalog, Ilocano, Panggalatok, Bicolano, Kapampangan, Cebuano, Waray, Ilongo-
Hiligaynon), not to mention the dialects of its various cultural minorities (Tausog,
Ibanag, Igorot, Aeta, Mangyan, Tasaday, etc.).

Integrating their customs and traditions into the national legal mainstream,
pursuant to the policy of multiculturalism (as in the case of the United States, Australia
and other countries) requires serious study of the precepts of the historical school law
and the participation of the different branches of the social sciences.
THE LIMITATIONS OF THE HISTORICAL SCHOOL

The historical school is useful in explaining the origin, growth and development of
law and jurisprudence and in suggesting a conceptual framework that states that law
and jurisprudence, if they were to be binding on a people, must respect, promote and
proceed from their national soul, spirit, consciousness, customs and tradition.

Despite its usefulness as a tool of analysis, however, the perspective of the

historical school is limited, especially in the modern times and in the light of international
law, in that:

* It fails to give proper importance to the fact that in certain fundamental legal
issues, like the tenets of inherent, inalienable and universal human rights, there are
basic principles of law and jurisprudence that are, indeed, universal and objective in
nature, regardless of time and space, so to speak, and regardless of location and
culture;

* There are certain principles, especially those of morality and ethics, as they
relate to law and jurisprudence, which are immutable and objective in character and
which proceed from an Ultimate Source or an Absolute Good, Enlightened Reason, or
Natural Law and Natural Justice, regardless of cultural and racial origins of peoples and
political boundaries of men.

* It tends to discourage law reform.

* It tends to promote juristic instability as the oblutiacs of various cultural minorities may
not be in line with the shared mainstream oblutiacs.

* Some customs are per se barbaric, inhuman and unreasonable.

No one school of thought is able to monopolize the full explanation and study of
the "general theory of law" or the "ultimate science of jurisprudence."

Perhaps each school of thought has its particular use for certain times and
places or its own relative wisdom viz certain issues at specific times and for specific
peoples.
In the end all schools of thought converge on these basic common grounds and goals:
truth, justice, freedom, peace, mutual respect, fairness, goodwill, compassion, wisdom,
and, most of all, the idea that mankind is a family of pilgrims travelling to their final
destiny.

A COMPENDIUM OF THE VARIOUS

SCHOOLS OF THOUGH IN LEGAL PHILOSOPHY

Law is evolutionary; it arises out of customs and traditions; and it develops like
language. This is a basic postulate in the historical school of law.

Legal philosophy is rooted in the history of philosophy itself. When one studies
the philosophy of law, he is forced to study the history of philosophy itself. Philosophy
means "love of wisdom." The ideal law or legal system is one that is rooted in wisdom,
reason and truth -- as against force, sanctions, and power. Law and justice are all about
wisdom, reason and truth.

There is a need to discuss the salient thoughts of the other schools of legal philosophy
which have emerged from the Greek period, the Roman period, the Medieval period, the
Reformation period and the Modern period. They, too, have their individual shares in
and contributions to the growth and development of the legal and philosophical systems
of mankind.

A. POSITIVIST SCHOOL

This school of thought developed at Yale, Oxford, and Cambridge beleves that
there is no law unless it is promulgated by the State. Law is written down and explicit.

The earliest codified Roman laws were the Jus Civilis, which was applicable to
Roman citizens, and the Jus Gentium, which was applicable to the legal relations of
Roman citizens with aliens ("perigrino") -- both of which were administered by a
"praetor" or a judge.

Emperor Justinian's greatest contribution to the growth of the legal system of the
world was his codification of all Roman laws. The Romans made law systematic, as in
the areas of family, persons, contracts, slavery, etc.

During the Reformation Period, the world saw the rise of Protestant philosophers.
Today (modern period), the world saw the rise of the sociological school, the functional
school, and the school of modern legal realism.
 The foremost proponent of the positivist school of law were Austin, Kelsen and
Hobbes. Dura lex sed lex expresses the meat of the positivist school of law.

To Austin, law is objective, authoritative, commanding, and empirical. It is the

expression of the will of the state. Natural law and moral law do not matter. Law is not a
moral concept. It must be free from metaphysical speculation. It is not made by God but
by a superior sovereign. Law is the conscious will and command of the sovereign
imposed on the subjects, who are liable to suffer penalties in case of violation thereof
(authoritative enforcement system).

To Kelsen, law is created by acts of men, not by God. For law to be stable, it must be
based on empirical science, not metaphysics. It must be made as exact and as
objective as the science of mathematics. In his "pure theory of law," Kelsen argued the
removal of moral connotations and value judgments from law, i.e. of all non-legal
elements. Law may be prescriptive, authoritative, permissive, or normative. Law is a
positive norm of conduct, hence, it is uniform for all. Coercion and sanctions enforce
law. In his pure theory of law, the focus is on "the law as it is", not on what it ought to
be. Law is objective and precise, not subjective.

B. IMMANUEL KANT

Kant was an advocate of the natural law theory. An advocate of human dignity
(man as end in himself), supremacy of reason and free will (as God-given and inherent
in man), equality, freedom, and mutuality of rights, and universal law of morality.

It is reason that makes law and obeys law. Man knows what is natural right or
natural law because he is rational and the precepts of natural law are inherently written
in his heart and mind (conscience).

"Practical reason" (the "good will" in man; the "empirical imperative") that makes
law and compels the conscience of man to obey the law. Duty (to obey and revere the
law and to do good to fellow men) is the highest virtue. Doing an act not out of "duty"
(good will) is immoral, though it may be legal. His ideal society is one where all men
possess the virtue of duty to do good.

Man is a moral individual. He is not a chattel. Moral rightness is a matter of

"motives" and legal rightness refers to "external acts." In his Metaphysics of Ethics, Kant
wrote, "Every action is right which in itself, or in the maxim on which it proceeds, is such
that it can co-exist with the freedom of the will of each and all, according to a universal
law."

Kant criticized Rossaeu's social contract theory because Kant believed that
human rights are not contracted but are inherent in man (dignity, freedom, equality).
In a sense, Kant and St. Thomas agree that law is based on reason for the common
good; that law is universal; and that natural law is inherent in the heart of men.

C. FUNCTIONAL SCHOOL

The functional school of law developed in the United States. It focuses on the
question: "Will this law work?" Law is one of experience.

It is also called the "theory of sociological jurisprudence", "sociology of law," or

"social science school of law."

It focuses on the "operation and effects" of law in relation to the interests of

society. The "interests of society", not the folk-soul or the pressures from the powerful
elite, is the source of law. Montesquieu wrote that law is an evolutionary process.

Law is a tool for the "balancing of interests" in society. It is a tool of "social

control" or "social engineering." In a sense, it adheres to the tenets of "pragmatic ethics"
or "ethical relativism" as it aims to serve the interests of society with the least friction.

It adheres to, and is actually a type of, "legal positivism" and "legal realism."

The main factors that define the law are expediency and the convenience of
society. Its main proponent is Dean Roscoe Pound.

There are three kinds of interests: individual, public, and social (or jural). All of
these must be considered in the "legal ordering" of society (private rights and
obligations vs. social interests). Since not all social conflicts can be compromised, some
interests must give in. In social engineering, where compromise fails, the tools of
arbitration, judicial action, purposive legislation, and decisive executive action must
come in.

The greatest good for the greatest number, or "social utilitarianism," is the main
guidepost of the functional school. Law is pragmatic and dynamic.

D. MODERN LEGAL REALISM

It is sometimes called "social legal realism," "modern legal realism," "American

legal realism," "theory of ethical and legal pragmatism (empiricism) and
experientialism." Its proponents were Sanders, Dewey, Storm and Holmes.
 It believes that the law is what the courts say it is. Unless a case arises out of the
interpretation and enforcement of a written law, there is no law because there is no
judicial interpretation. A law is merely a law on paper unless a case arises to interpret it.

Law is pragmatic, empirical and scientific. It is also relative, flexible and dynamic.

The source of law is the social experience of the people. The school of modern
legal realism criticizes the natural law school or the philosophical school because it
believes that law has no metaphysical source. The end of law is "social contentment". It
is an instrument of social control.

It focuses its study on "the law that is", not on "the law that ought to be."

Moral norms and natural law postulates do not decide court cases or determine
social behavior. As stated earlier, the law is what the courts say it is and how the courts
interpret and apply it (jurisprudence). That is the true source of law and the nature of
law.

Fact-finding is the most difficult and the most crucial task of courts. The judge, who
determines and applies the law, is a real person, an imperfect human being, with biases
and prejudices, and affected by all kinds of "metalegal stimuli". He is subject to all kinds
of real socio-psychological pressures.

In modern legal realism, congressional acts are not law but are a source of law. It
is the adjudicative process of the judiciary which defines, interprets, and applies the law.
In this school of thought, the emphasis is on the judicial process. Justice is equated with
equality. The official promulgation of a law is not necessarily equal to the justness of its
contents.

Out of this school rose the "critical legal studies movement" in the United States,
which, influenced by modern radical social theories, looked at law as being imposed by
the ruling class or elite in society who controls the tools of production. The movement
advanced the vision of positive equality (free open society), with law as an expression of
the folk-soul of the people.

The movement criticized the doctrine of stare decisis because it entrenched

existing injustice in the legal system and that it protected the ruling elite. It argued that
there were "indeterminate factors" in the judicial process which influenced the dynamics
of law. It assailed courts for moving from legal analysis and reasoning to law-making
(judicial legislation and judicial activism). It argued that legal objectivism and legal
formalism (legal positivism, the coldness of the law, and the doctrine of dura lex sed lex)
did not serve democracy and justice and that many legal procedures, rituals, formalities
and technicalities impeded the administration of justice and alienated the people from
the justice system. It exposed the weaknesses of the idealistic concept of democracy,
i.e. popular democracy versus elitist democracy, and it called for the democratization of
republicanism.
 E. MARXIST OR COMMUNIST SCHOOL

Karl Marx applied Hegel's dialectical method. He was the proponent of "dialectical
materialism." From this theory proceeded the concepts of "class struggle" (laborers
versus capitalists), supremacy of the State, and the inevitability of war among capitalist
states caused by competition, greed and technology.

Arguing for collectivism and centralized economic planning, Marxism identifies

with the proletariat (workers).

There is a perpetual struggle between the productive forces (labor) versus those
who control the tools and modes of production (capitalists). Human history is the history
of class struggle, class antagonism, and the exploitation of one class by another.

Marxism calls for the absolute abolition of private property. Wage labor does not
create property but it begets capital for exploitation by the capitalists.

Three major theories predominate Marxism: historical materialism, surplus value,

and class struggle. Historical materialism provides that the economic system is the
infrastructure of the political system (economic determinism). The theory of surplus
value provides that labor is a commodity that creates surplus value which is exploited by
capitalists.

The theory of class struggle provides that only the working class can destroy the old
system and ultimately create a classless society.

Law is a product of the economic system of society. The ruling elite (capitalists)
determine, define, fix and impose the law on the exploited working class.

When the working class shall have ultimately succeeded in destroying the old
system, a classless society will be born, and state and law will "wither away" (utopia). In
the interim (socialism), the state must keep class conflicts within bounds of order
(hence, the need for centralized economic and political planning, with one political party
in control of the state whose vision and mission are to serve the interests of the working
people).

Lenin wrote that state and law are instruments of class oppression. "The workers must
destroy the state, and not simply seize it." In the transitional stage, the "dictatorship of
the proletariat" is necessary to smash the control of the capitalist class. When utopia is
achieved, the people govern themselves (self-government), class struggles ends,
classless society is created, state and law wither away, communal life rules human
relations, and the state owns all means and modes of production.
 F. POLICY SCIENCE SCHOOL

The policy science school of law developed at the Yale School of Law.
Expounded by Lasswell and McDougal (Yale University), the policy science school
argues law is not a mere body of rules, that it is a continuous process of
democratization of social values, that it is a means for the equitable distribution of the
social values, and that the seven basic social values (power, knowledge or
enlightenment, respect, income or wealth, safety and health, liberty and equality) should
guide law-making and the legal ordering of society. These values are translated by
means of policy guidelines of the state. The policy science school is thus an advocacy
of social values.

G. NATURAL LAW PHILOSOPHY

The natural law school of legal philosophy was advocated by the Catholic Church
and its theologians, foremost among whom was St. Thomas Aquinas. The Catholic
Church dominated the medieval period and it had the best opportunity to develop the
philosophy of natural law during such period.

St. Thomas wrote the voluminous Summa Theologica. He described natural law
as the participation of man in eternal or divine law thru his gift of reason. A law which is
contrary to divine law is no law at all. A law is obeyed because of the persuasion of
reason (reasonableness test).

St. Thomas adopted and christianized the thoughts of Aristotle, a great Greek
philosopher.

The precepts of natural law are inherent in man and are written by God and
reason in his heart, e.g. the quest for justice, dignity, compassion, freedom, truth, love,
equality, and peace.

H. HEGELIAN PHILOSOPHY

Immanuel Kant influenced Hegel in his philosophy of law. Like Schelling and
Fichte, Hegel was an "speculative idealist" and an advocate of rationalism: "Whatever is
rational is real and whatever is real is rational." To him, reason is the ultimate essence
of the world or absolute reality.

Every concept leads to its opposite (thesis-anti thesis-synthesis) and that there is
an unending progress from thesis to antithesis and to synthesis, the latter being the
reconciliation of thesis and antithesis on a higher level. This is called the "dialectical
method" (the triadic process).

To Hegel, ethics culminates in the state and the state is the ethical idea and
reason turned into reality: "In the organization of the state, ... the divine enters into the
real." The state is a manifestation of the divine will. He wrote that all history is an
evolutionary process whose

ultimate goal is true liberty, and that liberty is only possible in a state, where man
reaches his dignity as an independent person.

He agreed with Roussaeu that in the "true state" it is the "universal" (the law) that
governs and "the individual of his own free will subjects himself to its rule." It is part of
the concept of man that he is free, Hegel wrote. The paradox was that in his latter
years, he opposed the democratic or republican form of government because of its
"subjectivism and atomism." He preferred the authoritarian state.

Hegel justified war or revolution based on and as an application of the dialectical

method (struggle of ideas).

I. JURAL AND NON-JURAL LAWS

Jurisprudence is a science of how the law is applied by the courts. It answers the
question: What does the court say? Its basic foundation is the doctrine of stare decisis.
The United States and the United Kingdom, being of common law origin, are precedent-
oriented, while most countries in Europe, which are of positive law origin, are code-
oriented.

Jural law is the "lawyer's law" enforceable in court, e.g. statutes, administrative
rules and regulations, opinions of jurists, private contracts, and court decisions.

Non-jural law is the "unwritten law", e.g., customs and traditions, which may not
be enforceable in court and yet influences the way jural law is applied by the courts.
Divine law, moral law, natural law and the folk-soul of the people may be said to belong
to the category of non-jural law.