READINGS IN LEGAL PHILOSOPHY AND THEORY

CHAPTER 1 INTRODUCTORY CHAPTER

DEFINITION, NATURE AND FUNCTION Philosophy is taken from the Greek words, Philos and Logos, which means love of wisdom. Philosophy is the study of the universe that seeks to know the truth and rational explanation of anything. Philosophy of Law is that branch of philosophy which deals with the wisdom of law. It studies the nature of law with particular reference to the origin and end of law, and all the principles that govern its formulation. It is part of practical philosophy. The ob ect of philosophy of law is the study of law in universal sense, as law can also be studied as to its particular points in which the ob ect is J !i"i#al S#i$%#$ o! J !isp! "$%#$. !arts of the system of "uridical #cience are$ %. !ublic &aw '. !rivate &aw !arts %. '. *. +. ,. of !ublic &aw are$ (onstitutional &aw )dministrative &aw !enal &aw !rocedural &aw International &aw

!arts of !rivate &aw are$ %. (ivil &aw '. (ommercial &aw

*. Those that govern relationships among individuals or uridical entities. "uridical #cience can only inform the people of the law among certain people in a given period, answering only the uestion of what is established by law of a certain system -quid juris.. !hilosophy of law, however, transcends the competence of each individual uridical science. It considers the essential elements which are common to all uridical systems -/ant.. )ccording to Giorgio del 0ecchio, !hilosophy of &aw is the course of study which defined law in its logical universality, seeks its origins and general characteristics of its historical development and evaluates it according to the ideal of ustice drawn from pure reason. FUNCTION OF PHILOSOPHY OF LA& !hilosophy of law is a 1uest of law which appeals to reason to obtain ustice. 2ne function of philosophy therefore is to formulate law that is reasonably acceptable to the people to whom it is addressed. !hilosophy of law therefore is opposed to tyranny. The practical function of philosophy is that it teaches and prepares for the positive recognition of the uridical ideal.

CHAPTER II HISTORY OF PHILOSOPHY OF LA&

3very branch of knowledge is better understood by knowing its history. 4istory of !hilosophy is a means of study and research which helps in the ac1uisition of regarding knowledge philosophies advocated by different philosophers in the past. It is a study of how philosophers meditated upon the problems of law and ustice. !hilosophy in the past has been intermingled with Theology, 5orals, and !olitics. THE PHILOSOPHY OF ANCIENT GREECE The general history of &egal !hilosophy started with the ancient Greek philosophers #ocrates, !lato, and )ristotle. In the %,th century, the #ophists denied the existence of absolute ustice. &aw to them is relative. !lato in his Dialogue disputed the #ophists. So#!a'$s -+678*77 9(. believed in a higher ustice for the validity of which it is necessary that there is a positive sanction or a written formulation. 2bedience to the law of the state is a duty. #ocrates in this way gave the first indication of the idealistic philosophical system. Pla'o -+':8*+: 9(., a disciple of #ocrates, in his two dialogues, The Republic and The Laws, presented the ideal concept of the #tate as the most perfect unit. The #tate dominates all human activity and must promote good in any form. "ustice is achieved through the harmonious relation between the various parts of the #tate. A!is'o'l$ -*;+8*'' 9(., a disciple of !lato, in his Nichomachean Ethics, said that all supreme good is happiness, the product of virtue. The #tate regulates the lives of the citi<ens by means of laws. The content of laws is ustice as is applied in various ways. /inds of ustice according to )ristotle$ %. =istributive ustice > applied in giving honors and respects '. (onnective and e1uali<ing or called rectifying ustice > applied to voluntary contractual relationship. THE ANCIENT RO(AN JURISTS The ?oman excelled the codification of law but the philosophical basis derived from the Greeks.

Ci#$!o said that law is not a product of choice but is given by nature. There is eternal law which is an expression of universal reason. 31uity and natural law are factors in an ideal law. The contribution of the ?omans to urisprudence is the formulation of codes, putting together in a systematic form the rules and practices. THE PHILOSOPHY OF THE (EDIE)AL ERA * THE INFLUENCE OF CHRISTIANITY (hristianity as an advocate of liberty, e1uality, and the unity of the human family through divine law became a challenge to the established political order. The influence of (hristianity later became profound upon politics and urisprudence. 5odifying the Greek and &atin philosophies that the individual@s supreme mission is to be a good citi<en of the #tate, (hristianity said that the good goal of the individual is not only on civil life but eternal happiness which can be obtained through submission to the =ivine will. The (hurch asserts itself as an autonomous authority above the #tate. The #tate is concerned only to earthly things while the (hurch, with those that are eternal. THE RENAISSANCE The ?enaissance, a rebirth that started in the %+th century, came about to overcome the long period of excessive dogmatism. In ?enaissance, autonomy and freedom of investigation were awakened. The discovery of the Aew Borld and the invention of printing press permitted the propagation of new ideas. The ?eligious ?eformation resulted in the withdrawal of religious leaders from the authority of the (hurch. )ccepting )ristotle@s theory of being good in political society, law is something that is presented by reason not by revelation. Aatural, moral law world exists even if there is no God.

CHAPTER III

HISTORICAL SCHOOL
SA)IGNY, OF THE )OCATION OF OUR AGE FOR LEGISLATION AND JURISPRUDENCE
ORIGIN OF POSITI)E LA& The law will be found to have already particular faculties and tendencies of an individual people, inseparably united in nature, and only wearing the semblance of distinct attributes to our view. That which binds them into one whole is the common conviction of the people, the kindred consciousness of an inward necessity. Cor law, as for language, there is no moment of absolute restD it is sub ect to the same movement and development as every other popular tendencyD and this very development remains under the same law of inward necessity, as in its earliest stages. &aw grows with growth, and strengthens with the strength of the people, and finally dies away as the nation loses its nationality. Bith progress of civili<ation, national tendencies become more and more distinctE law perfects its language, takes a scientific direction, and as formerly it existed in the consciousness of the community, it now devolves upon the urists, who thus, in this respect, represent the community. LA&S AND LA& +OO,S ?e1uisites of a really good code$ Foung nations, it is true, have the clearest perception of their law, but their codes are defective in language and logical skill, and they generally incapable of expressing what is best, so that they fre1uently produce no individual image...

CO((ENTS +Y PATON ON SA)IGNY

In opposition to the pure science of law, the his'o!i#al s#hool considered law in direct relationship to the life of the community and thus laid the foundation on which the modern sociological school has built. 4ow did law came to beG &aw evolved, as did language, by a slow process and, and ust as language is a peculiar product of a nation@s

genius, so is the law. The source of the law is not the command of the sovereign, not even the habits of the community, but the instinctive sense of right possessed by every race. #uch is the approach of the historical school, and it naturally led to a distrust of any deliberate attempt to reform the law. &egislation can succeed only if it is in harmony with the internal convictions of the race to which it is addressed. The contribution of the historical school to the problem of the boundaries of urisprudence is that law cannot be understood without an appreciation of the social milieu in which it has developed. The slow evolution of law was stressed and its intimate connection with the particular characteristics of a people. 9ut in #avigny@s particular presentation there were exaggerations of which the historical method must be freed if it is to play its true part$ %. #ome customs are not based on an instinctive sense of right in the community as a whole but on the interests of a strong minority, e,g, slavery. '. Bhile some rules may devlop almost unconsciously, others are the result of conscious effort. &aw has been used to plan the future deliberately and not merely to express and order the results of past growth. *. The creative work of the udge and urist was treated too lightly. The life of a people may supply the rough material, but the udge must hew the block and make precise the form of law. +. Imitation plays a greater part than the historical school would admit. ,. #avigny encouraged what !ound has termed as uristic pessimism8 legislation must accord with the instinctive sense of right or it was doomed to failure. 4ence conscious law reform was to be discouraged.

CHAPTER I) SE(INAL CONCEPTS -Philosophi#al App!oa#h.

THE REPU+LIC +y Pla'o

CLASSICAL NATURAL LA& )ccording to !lato, when udgment of society takes the form of a public decision of the state, it has the name law. )ccording to #ocrates, public opinion is true opinion, and '! $ opi%io% is "is#o/$!y of !$ali'y. 4e therefore concludes that law seeks to be the discovery of reality, or more precisely, it is the true reality with respect to the administration of the state. &aw may not always achieve its ideal of discovering true reality, still, #ocrates adds, no society believes that that ust can really be un ust. Bhoever fails to reach reality, fails it find the law. Those who know always accept the same viewsD they will not write differently at different times on different matters. If we see some persons anywhere doing this, we can say that they have no knowledgeD and if they are mistaken in what they describe as law, then that law is mere appearance and ought not be accepted to be asserting a distinction between principles and rules. !lato offers another definition of law as the opportionment of reason. Reason is apprehension of reality. #o what did !lato mean by realityG !lato once tentatively defined reality as power, by which he meant that anything has real existence if it has inherent in it the power of being affected or of affecting others, no matter how small. !lato asserted that law was the discovery of true reality, appearing to mean that the moral value of law increases as it approximates the ideal law which exists in the world is reality. !lato puts forward the theory that law is an instrument of social control and thus suggests the problem of the end of law. 4e held that the end of law was to produce men who were completely good. 4e therefore re ected laws that did not incline to the end, asserting that a bad law is a no law. Bas !lato hostile to lawG !lato of the Republic preferred the adaptable intelligence of the all8wise autocrat to the impersonality of the rule of

law. 4eknew well the simple truth, as the trial of #ocrates had shown him, that the debating method of the courtroom, as distinguish from cross8examination, was perhaps the least likely to lead to the discovery of truth. 4owever, in the Laws and Statesman, !lato reali<ed that on this earth benevolent dictatorship was a counsel of perfection and that he would better propose a solution which had a possibility of reali<ation$ society should fall back upon law as second8best. 4e asserted that fixed laws are to be preferred to the personal administration of the unscientific ruler which is the type society usually receives. Cor !lato, there was not a man among us whose natural e1uipment enabled him both to see what was good for men as members of the community, and on seeing it, always to be both able and willing to act for the best. )s )cton puts it, all power corrupts and absolute power corrupts absolutely. &aw the generality of it could not always do ustice to particular cases. The #tate for !lato is a man on large scale. It is a whole form of various individuals and solidly built, as body is formed of several organs, which together make its life possible. 9oth in the individual and in the #tate, there must reign that harmony which is obtained through virtue. J s'i#$ is 'h$ /i!' $ pa! $0#$ll$%#$, i%sofa! as i' #o%sis's i% a ha!1o%i# !$la'io% 2$'w$$% 'h$ /a!io s pa!'s of a whol$. Three parts or faculties exist in the soul of the individual$ %. ?eason which dominates '. (ourage which acts *. sense which obeys #imilarly, in the #tate three classes are distinguished$ %. The wise to dominate '. Barriors to depend the social organisms *. )rtisans and farmers who must feed it. The cause of participation in and submission of the individual to the #tate is the lack of autarchy, the imperfection of the individual, his insufficient by himself. Cor !lato, it is only the #tate which is a perfect being and sufficient unto itself, and which absorbs and dominates all. The #tate, therefore, dominates human activity in all its manifestations. Hpon its rest the duty to promote good in its every form. The power of the #tate is

limitless. To render stronger and closer8knit the political organi<ation, !lato suppresses social entities which are intermediate between the individual and the #tate. 9y !lato, at any rate, the personality of man is not ade1uately recogni<ed. These briefly are the principal concepts formulated by !lato in the =ialogue, Republic. The =ialogue &aws, composed later, when !lato was seventy, has character different preceding one, because it does not trace out a pure ideal, but considers instead historical reality, and there appear often an admirable sense of practical experience. In the =ialogue Laws, !lato shows a greater respect for individual personality, always, however, that of free men only. Camily and property are conserved, no longer sacrificed to the sort of #tatism, as in ?epublic. The authority of the #tate however remains nevertheless very great and overpowering. !lato critici<es both monarchy and democracy, and proposes a sort of synthesis, a mixed government. "ust like in #parta, aside from two kings, there were the #enate and the 3phors.

CO((ENTS ON PLATO +Y CAIRNS, THE REPU+LIC

4ow much !lato owed to his predecessorsG Crom #olon$ 4appiness of the state depended upon the faithful observance of sound laws, and that it was the duty of the good citi<en to see that such laws were made. Crom 4erodutos$ &aw is the master. Crom !indar$ &aw is the lord of all.

ARISTOTLE3S POLITICS Classi#al Na' !al Law

In the !latonic Minos, his definitions of law are partial. They are always relative to the problem before him, and the aspect of law which they emphasi<e constantly shifts in order to permit different conse1uences to be drawn.

In the ?hetoric to )lexander, it is pointed out that in a democracy the final appeal is to reason. ) self8governing community is directed along the best path by its public law, and so as king, as the embodied of reason, guides along the path of their advantage those who are sub ect to this rule. In a clumsy attempt to bring the two ideas together, law then is defined as the common consent of the community, regulating action of every kind. )nd later, in the same treatise, law is defined as the common agreement of the state en oining in writing how men are to act in various matters. )ristotle agreed with !lato that legislation should teach virtue. Goodness, in men, he thought, could be secured if their lives were regulated by a certain intelligence, and by a right system, invested with ade1uate sanctions. 4e therefore suggests that, in a general sense, the la itself is a kind of contract, so that whoever disregards or repudiates a contract is repudiating the law itself. )ristotle however said that law was much more than a contract. 4e pointed out that if the state did not pay attention to virtue, the community became merely an alliance. )ristotle developed a distinction between constitution and laws$ (onstitution > the organi<ation of offices in a state, and determines what is to be the governing body, and what is the end of each community. &aws > are the rules according to which the magistrates should administer the state, and proceed the offenders. To the extent his works have survived, it is clear that )ristotle did not reach any final definition of law. 4e saw the inherent complexity of legal phenomena, and he found no single description of it could embrace its manifold aspects. )ristotle thought of law as a rule of conduct for the individual #tressed the ideal reason, the doctrine that legal precepts should have some basis in intelligibility and not be the mere expression of arbitrariness, force, or custom !resented law as a contract =istinguished law from constitution and defined as the rules in accordance with which court determine cases !ointed out law as a form of order.

&aw itself, like everything in the )ristotleian system has its end and to )ristotle it was very clear that its task was to make men good. )nd to )ristotle, the highest good is happiness or well8being. )ristotle defined happiness as an exercise of the powers of life in accordance with the virtue throughout the whole life8time. 4appiness takes its origin in virtue, it issues in pleasure, and material good8fortune is its ordinary e1uipment. )ristotle@s definitions satisfy the !latonic conditions for a happy life, but as a uristic formula it has several defects$ The tasks of law can no more can be caught within the net of a single formula than its numerous and contradictory aspects can be confined within the limits of one definition. The idea of the end of law is that it breaks down as it is put into practice. )ristotle held that the law has no power to command obedience except of that habit. 3ducation also assists in making obedience to law second nature to the citi<ens. In the doctrine of the categories, conduct comes under the heading of Iuality. 0irtue is a Iuality and )ristotle assumes that the category has four divisions$ habits, or tendencies to do a thingD capacities for doing a thingD feelings, passions and emotions prompting us to do a thingD and external form or shape. 4abituation is the only method of ac1uiring that settled tendency to do acts of a certain kind. THEORY OF LEGISLATION )ristotle@s normative view of the law is clearly apparent in his theory of legislation. That law prescribes certain conduct$ that conduct of a brave manD that of a template manD that of a gentleman, and so with all the other virtues and vices, prescribing some actions and prohibiting others. !lato held that legislation should be so framed that it could be incorporated in a manual of instruction for the young. &agislation is a branch of political science.

(ollections of laws and constitutions may be serviceable to students capable of studying them critically and udging what measures are valuable or the reverse, and what kind of institutions are suited to what national characteristics. 9ut those who examine such compilation without possessing a trained faculty cannot be capable of udging them correctly, unless, indeed, by accident, though they may very likely sharpen their political intelligence. )ristotle laid down a series of principles to control and guide the legislative process$ The legislators he believed were from middle class888 ought to have his eyes directed to two points > the people and the country. &egislator@s state must have a political life, a life of intercourse with other states ) legislator must make sure that the nation@s arms should be such as enable it to meet its foes in its on territory. The legislator must pay attention to the foreign relations of the state The legislator should not make con1uest the aim of the state.

(icero@s principal thesis is that &aw is not a product of choice, but is given by nature. )ccording to him, &aw is noted based on arbitrary opinion, but there is a natural, immutable and necessary ust as is proved by testimony taken from the very conscience of man. 9esides this jus naturale, there exists jus gentium observed by all people which serves as a basis for their mutual relations because it based upon their common needs. )nd there is jus civile, that which is in force for each people in particular. There is therefore a law of nature, immutable, not artificially made but already existing, inborn. It is a uniform law, not sub ect to change by the action of men.

THE RO(AN JURISTS CICERO * DE LEGI+US

&aw is the highest reason implanted in nature. It is the mind and reason and mind of an intelligent man, the standard by which "ustice and In ustice are measured. ?eason when perfected is rightly called wisdom. Those creatures who have received the gift of reason from Aature have also received right reasons, and therefore they have also received the gift of &aw, which is right reason applied to command and prohibition. )nd if they have received &aw, they have received "ustice also.

CO((ENTS ON CICERO +Y CAIRNS

(icero maintains that nothing can be nobler than the law of the state. &aw is the bond of the society, and the state may be defined as an association or partnership in law. If a state has no law, it cannot be considered a state at all.

,ANT3S THE PHILOSOPHY OF LA& PROLEGO(ENA LA& AND ETHICS G$%$!al I%'!o" #'io% 'o 'h$ ($'aphysi#s of (o!als
&aws of morality is not drawn from observation of oneself or of our animal nature, nor from perception of the course of the world in regard to what happens, or how men act. 9ut ?eason commands how we ought to act, even although no example of such action were to be foundD nor does ?eason give any regard to the )dvantage which may accrue to us by acting , and which 3xperience could alone actually show.

GENERAL DI)ISIONS OF THE (ETAPHYSICS OF (ORAL

GENERAL PRELI(INARY CONCEPTIONS DEFINED Na' !$ a%" Posi'i/$ Laws > 2bligatory &aws for which an external &egislation is possible, are called generally E ternal Laws. Those 3xternal &aws, the obligatories of which can be recogni<ed by ?eason a

priori without an external &egislation, are called Aatural &aws. Those &aws, again, which are not obligatory without actual 3xternal &egislation, are called !ositive &aws. (a0i1s > The !rinciple which makes a certain action a =uty, is a !ractical &aw. The ?ule of the )gent or )ctor, which he forms as a !rinciple for himself on sub ective grounds, is called his 5axim. Th$ Ca'$4o!i#al I1p$!a'i/$ > The (ategorical Imperative only expresses generally what constitutes 2bligation. It may be rendered by the following formula$ )ct according to a 5axim which can be adopted at the same time as a Hniversal &aw.

INTRODUCTION TO THE SCIENCE OF RIGHT G$%$!al D$fi%i'io%s a%" Di/isio%s

A5 &HAT THE SCIENCE OF RIGHT IS6 The #cience of ?ight has for its ob ect the !rinciples of all the &aws which it is possible to promulgate by external legislationE +5 &HAT IS RIGHT6 )ll this may remain entirely hidden even from the practical "urist until he abandon his empirical principles for a time, and search in the pure ?eason for the sources of such udgments, in order to lay a real foundation for actual positive &egislation. The conception of ?ight$ %. 3xternal and practical relation of one !erson to another, in so far as they can have influence upon each other, immediately or immediately, by their )ctions as facts. '. The relation of his free action to the freedom of action of the other. *. In this reciprocal relation of voluntary actions, conception of ?ight does not take into consideration the matter the act of Bill in so far as the end which any one may have in view in willing it, is concerned. ?ight, therefore, comprehends the whole of the conditions under which the voluntary actions of any one !erson can be harmoni<ed in reality

with the voluntary actions of every other !erson, according to a universal &aw of Creedom. C5 UNI)ERSAL PRINCIPLE OF RIGHT 3very )ction is right which in itself, or in the maxim on which it proceeds, is such that it can co8exist along with the Creedom of the Bill of each and all in action, according to a universal &awJ. 2r it can be expressed as )ct externally in such manner that the free exercise of thy Bill may be able to co8exist with the Creedom of all others, according to universal &aw. D5 RIGHT IS CONJOINED &ITH THE TITLE OR AUTHORITY TO CO(PEL 3verything that is wrong is a hindrance of the freedom, according to universal &awsD and (ompulsion or (onstraint of any kind is a hindrance or resistance made to Creedom.

CO((ENTS +Y PATON ON ,ANT

To define law we must distinguish between form and matter. Corm is being the complex of universally valid principles presupposed in any legal udgmentD 5atter is the changing world of social experience which those principles construe legally. ?odulf #tammler regards !hilosophy of &aw as the theory of those propositions about law which have universal validity. )ccording to #tammler, law belongs to the realm which chooses end and determines 5eanD that law is the notion of purpose. It exists to bind together the community. #ince by definition law exists to harmoni<e the purposes of individuals, law itself strives towards ustice. The fundamental basis of law and of ust law are, therefore, the same. &aw exists to coordinate, it can operate only by unifying all possible acts of men.

These principles of ust law are based on the doctrines of respect and of participation. !oints of #tammler@s Theory on &aw$ %. &aw can exist only if actual society exists. '. The realm of law and the natural world are distinct. *. 5ost systems do assume that law is complete and exclusive system in itself.

HEGEL3S THE PHILOSOPHY OF RIGHT

4egel believed that philosophy possessed a logic or method of its own, one that was peculiar to itself, and which constituted philosophy@s own kind of scientific proof. This was the dialectic method, which proceeds through the development of concept. It is the process by which from the first member of the triad, say 9eing, a second element, Aothing, is deduced. This is possible because 9eing in its completely abstract form, devoid of all 1ualities is, Aothing. 9ut we are able to at this point to perceive the presence of the member of the triad, 9ecoming. In fact we are forced to take this step according to 4egel because unless we do so, we are asserting the paradoxical proposition that 9eing and Aothing are the same > that a thing is both is in and is not. Be must therefore search for what 4egel calls the unity of opposites. In the present case it is found in 9ecomingD a thing both is and is not when it becomes. ?ational is actual and actual is rational. #o far as urisprudence is concerned with the truth is nothing new. !hilosphy@s problem is to isolate those truths and to exhibit their logical necessity. The laws of nature are given and their measure is outside man. !ositive law, on the contrary is posited, it originates with man. Be cannot know the truth through the method of either intuitionalism or sub ectivism. !hilosophy@s concern is with the rational. This means that it is an effort to apprehend the actual.

CHAPTER ) AUSTIN, THE PRO)INCE OF JURISPRUDENCE DETER(INED

&aws proper, or properly so called are commandsD laws which are not commands are laws improper or properly so called. &aws properly so called, with laws improper by so called, may be aptly divided into the four following kinds$ %. The divine laws, or the laws of God$ that is to say, the laws which are set by God to his human creatures. '. !ositive &aws$ that is to say, laws which are simply and strictly so called, and which form the appropriate matter of general and particular urisprudence. *. !ositive morality, rules of positive morality, or positive moral rules. +. &aws metaphorical or figurative, or merely metaphorical or figurative. The divine laws and positive laws are laws properly so called. 2f positive moral rules, some are laws properly so called, but other laws are improper. !ositive moral rules may be styled laws or rules set or imposed by opinion$ for they are merely opinions or sentiments held or felt by men in regard to human conduct. ) law metaphorical or figurative and a law imperative and proper are allied by analogy merelyD and the analogy by which they are allied is slender or remote.

(onse1uently, positive laws -the appropriate matter of urisprudence. are related in the way of resemblance, or by close or remote analogies to the following ob ects$ the laws of GodD positive morality which are set by opinionD and to laws metaphorical or laws merely metaphorical. In the six lectures, )ustin distinguished positive laws from the enumerated other kinds, and considered as a whole, the province of urisprudence determined. It is accomplished through the following$ %. 4e determined the essence or the nature which is common to all laws that are laws properly so called. )nd, '. =etermined the respective characters of the four several kinds into which laws may be aptly divided. 4aving suggested the principal purpose, )ustin indicated the following topic$

%. 4e determined the essence or nature which is common to all laws that laws properly so called. =etermining the essence or nature of a law imperative and proper, )ustin determined implicitly the essence of nature of a command. 9y commands, )ustin implied$ sanction or enforcement of obedienceD duty or obligationD superior and inferior. '. 4e determined the characters or marks by which the laws of God are distinguished from other laws. )ustin divided the laws, and other commands of the =eity, into two kinds$ %. The revealed or express '. Hnrevealed or tacit )ccording to )ustin, the divine law is the measure or test of positive law and morality$ 2r law and morality, in so far as they are what they ought to be, conform, or are not repugnant, to the law of God. #ince, then, the nature of the index to the tacit command of the =eity is an all8important ob ect of the science of legislation, it is a fit and important ob ect of the kindred science of urisprudence. )ustin distributed laws or rules into two classes$ %. &aws properly so called, with such improper laws as are closely analogous to the properD '. Improper laws which are remotely analogous to the proper and which, therefore, laws metaphorical or figurative. &aws proper with much improper laws as are closely analogous to the proper are under three classes$ %. !roperly so called the laws of God '. !roperly so called the positive laws *. !roperly so called, with the laws improperly so called, positive morality or positive moral rules. !ositive moral rules distinguishing characters$ %. &aws or rules set by men to men as are not armed with legal sanctionsD '. &aws or rules as are not positive laws, or are not appropriate matter for general or particular urisprudence. =etermining the characters of positive laws, determines implicitly the notion of sovereignty, with the implied or correlative notion of

independent political society. 3very positive law or every law simply and strictly so called is set by a sovereign person, or a sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign supreme. ) law, in the most general and comprehensive acceptation in which the term, in its literal meaning, is employed, may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him. Bithout extension by metaphor or analogy, the term law embraces the following ob ects$ %. &aws set by God to his human creaturesD and '. &aws set by men to men. The whole or a portion of the laws set by God to men is fre1uently styled the law of nature, or natural law. 9ut re ecting the appelation &aw of Aature as ambiguous and misleading, )ustin named those laws or rules the Divine Law or the law o! "od. 2f the laws or rules set by men to men, some are established by superiors, sovereign and sub ect$ by person exercising supreme and subordinate government, in independent nations, or independent political societies. )s contradistinguished to natural law, or to the law of nature , the aggregate of the rules, established by political superiors, is fre1uently styled positive law. (losely analogous to human laws of this second class, are a set of ob ects fre1uently but improperl# termed laws, being rules set and enforced by mere opinions or sentiment held or felt by an indeterminate body of men in regard to human conduct. )ustin denoted them by the term positive morality. The name moralit# severs them from positive law, while the epithet positive dis oins them from the law o! "od. There are numerous applications of the term law, which rest upon a slender analogy and are merely metaphorical or figurative. #uch is the case when we talk of laws observed by the lower animalsD of laws regulating the growth or decay of vegetablesE etc. Cor where intelligence is not, or where it is too bounded to take the name of reason, there is not the will which law can work on, or which duty can incite or restrain. 3very law or rule -taken with the largest signification which can be given to the term properly. is a command.

) command is distinguished from other significations of desire by purpose of the party commanding to inflict an evil or pain in case the desire be disregarded. If you cannot or will not harm me in case I comply not with your wish, the expression of your wish is not a command, although you utter your wish in imperative phrase. 9eing liable to evil from if I comply not with you@re a wish which you signify, I am bound or obliged by your command, or I lie under a dut# to obey it. (ommand and duty are, therefore correlative terms$ the meaning denoted by each being implied or supposed by the other. The evil which will probably be incurred in case a command be disobeyed or in case a duty be broken is fre1uently called sanction, or an en!orcement o! obedience. 9y some celebrated writers -by &ocke, bentham, and !aley., the term sanction, or enforcement of obedience, is applied to conditional good as well as to conditional evil$ to reward as well as to conditional punishment. 4owever, )ustin disagreed with this, according to him, if a law hold out a reward as an inducement to do some act, an eventual right is conferred, and not an obligation imposed, upon those who shall act accordingly. Crom what has been premised, the ideas or notions comprehended by the term command are$ %. ) wish or desire conceived by a rational being, that another rational being shall do or forbear. '. )n evil to proceed from the former, and incurred by the latter, in case the latter comply not with the wish. *. )n expression or intimation of the wish by words or other signs. It also appears then that command, dut#, and sanction are inseparably connected terms. (ommands are of two species$ laws or rules. 5ost of the laws which are established by political superiors, or most of the laws which are simply and strictly so called, oblige generally the members of the political community, or oblige generally persons of a class. To frame a system of duties for every individual of the community, were simply impossible.

Superiorit# is defined by )ustin as signifying might$ the power of affecting others with evil or pain, and of forcing them, through fear of that evil, to fashion their conduct to one@s wishes. The might or superiority of God, is simple and absolute. 9ut in all or most cases of human superiority, the relation of superior and inferior, and the relation of inferior and superior are reciprocal. The party who is the superior as viewed from one aspect, is the inferior as viewed from another. There are other ob ects improperly termed laws -not being command. which yet may properly be included within the province of urisprudence$ %. )cts on the part of legislatures to explain positive law > working no change in the actual duties of the governed, but simply declaring what those duties are. '. &aws to repeal laws, and to release from existing duties. In so far as they release from duties imposed by existing laws, they are not commands, but revocations of commands. *. Imperfect laws, or laws of imperfect obligation. ) law which wants a sanction, and which, therefore, is not binding.

CO((ENTS +Y PATON ON JOHN AUSTIN3S I(PERATI)E SCHOOL

!aton discussed )ustin@s views under three heads$ -a. the basis of urisprudence, -b. the method of urisprudence, -c. the relation of laws and ethics. THE +ASIS OF JURISPRUDENCE )ustin@s broad approach to law was to regard it as a command of the sovereign. !ositive laws is a general rule of conduct laid down by a political superior to a political inferior. The notion of command re1uires that there must be a determinate person to issue the command, and that there is an implied threat of a sanction if the command is not obeyed. )ustin@s aim was to separate positive law sharply from such social rules as those custom and morality. The emphasis on command achieved this end, for the rules of eti1uette are not laid down by a definite person.

9ut, if the law of each country is based on commands of the sovereign person -or body of persons. in that country, on what is urisprudence to be basedG )s each sovereign may command what he wishes, will not there be the utmost diversity between the legal systemsG Is there any element of identity on which general science can be basedG )ustin did not deal clearly on this problem. 4e assumed, without any real investigation, that certain principles, notions, and distinctions were common to all systems of law. #ome notions were universal because it was impossible coherently to construct a legal system without using them, e.g. the terms dut#, right, injur#, punishment, and redress. )nalysis reveals )ustin@s foundation to be rather unstable$ Cirstly, it is clear that there are no universal rules of law. #econdly, there are few concepts which are common to all legal systems, and if we confine our analysis to such as we think are universal, we run to dangers$ %. If further research shows that there are no concepts which are common to all systems, then there is no basis for general urisprudence at allD '. 3ven if a few notions are proved to be universal, they form somewhat narrow basis for a science of law. The solution of the problem is that, although there are few rules of law that are universal, yet there may be universal principles of urisprudence. The assumption of urisprudence is that in all communities which reach a certain stage of development there springs up a social machinery which we call law. "urisprudence is not primarily interested in cataloguing uniformities, nor in discovering rules which all nations accept. Its task is to study the nature of law, the nature of legal institutions, the development of both law and legal institutions and their relationship to society. "urisprudence is founded on the attempt, not to find universal principles of law, but to construct a science which will explain the relationship between law, its concepts, and the life of society. )ustin did not analyse this problem acutely. THE (ETHOD OF JURISPRUDENCE )ustin believed that the chief tool of urisprudence was anal#sis. Today, however, it is increasingly recogni<ed that, useful as analysis may be, it will not suffice to answer all the problems of urisprudence. #ome of the imperative school seem to proceed on the tacit assumption that all legal problems can be answered by analysis of the rules that exist and by deductions from them. 3xaggerated positivism ignores the fact that law

develops not by logic alone, but by drawing new values from the life of the community and by gradually reshaping the rules so that they accord with the standards of today. Be cannot always convict a dissenting minority in the 4ouse of &ords of an error in logic > what is fre1uently decisive is the udge@s view of the purpose that law should achieve. Bhat is here st6ressed is only that the analytic system based on )ustin@s teaching did not make sufficient allowance for the creative element in law and tended to magnify the static character of legal rules. LA& AND ETHICS )ustin distinguished urisprudence, the science of the law from the science of legislation which he based on the principle of utility. 9ut we can see today that even the most positive member of the analytical school did not succeed in separating the law that is from ideal elements. )nalysts treated law as a coherent system based on certain fundamental principles from which particular rules may be deduced. Aaturally, no system of law is perfectly self8consistent, but any rule that could not be fitted into the analyst@s framework was dubbed an historical accident or logical anomaly which -it was predicted. would soon disappear. 9ut the analysts assumed that logical self consistency was the sole end of the law. (learly, law does not exist for the sake of consistency, for many a rule that is theoritically anomalous is based on sound views of public policy. Thus, criticism of the analytical school emphasi<es two very significant truths for urisprudence$ %. The law that is does not exist as a perfectly proportioned body of rules deduced from a few leading principles. The social pressures of the past have led to many convenient anomalies being adopted. 4ence any attempt to reconcile the rules on logical ground easily develops into a study not of the law that is but of the law that should be, if logic were to prevail. '. It is extraordinarily difficult for any school to resist setting up an ideal which can be made the basis for constructive criticism of the law. The influence of their work was such, however, that their insistence that lawyers should be concerned with law that is, combined with the dogma that udges do not make law, led to a wasteful argument about whether or nor udges do make law when ion fact udges do make law. The analytical positivists still affirm the )ustinian belief that$ &aw can and ought to be made the sub ect of study separately from moralsD

(an be seen as a system of rules with a logic of its own capable of more satisfactory elucidationD The methods of linguistic analysis pursued by the philosophers can be employed in urisprudence to clear up many pu<<les which have troubled legal theorists, and to produce clearer thinking for lawyers generally.

,ELSEN3s PURE THEORY OF LA&

LA& AND NATURE LA& AS A PART OF (ORALS Bhat is the relationship of law and moralsG This 1uestion has two meanings$ 2ne, what is the relationship between the twoG The other, what ought it beG The first 1uestion is sometimes answered by saying that law by its very nature is moral, which means that the behavior commanded or prohibited by legal norms is also commanded or prohibited by the moral norms. Curthermore, that if a social order commands a behavior prohibited by morals or prohibits a behavior commanded by morals, this order is not law, because it is not ust. The 1uestion is also answered, however, by stating that the law may, but need not be moral, although the postulate is admitted that the law ought to be moral, which means$ ust. If the 1uestion of the relationship between the law and morals is understood as a 1uestion concerning the content of law and not as a 1uestion concerning its formD if it is said that law according to its nature has a moral content or constitutes a moral valueD then one asserts by these statements that law is valid within the sphere of morals, that the legal order is part of the moral order, that law is moral and therefore by its nature ust. RELATI)ITY OF (ORAL )ALUE 9ut if an absolute value in general and an absolute moral value in particular is re ected from the point of view of scientific cognition,

because an absolute value can be assumed only on the basis of religious faith in the absolute and transcendent authority of a deityD if one grants that under different circumstances different behavior may be considered good or evil, ust or un ust, and nothing has to be considered good or evil, ust or un ust, under all possible circumstancesD if in short, one acknowledges that moral values are only relative$ then, the assertion that social norms must have a moral content, must be ust in order to 1ualify as a law, can only mean that these norms must contain something common to all possible moral systems, as systems of ustice. In view of extraordinary heterogeneity, however, no element common to the contents of the various moral orders is detectable. )ll moral orders have only one thing in common$ that they are social norms, that is norms, norms that order a certain behavior of men > directly or indirectly > toward other men. )ll possible moral systems have in common their form, the ought$ they prescribe something, they have normative character. 5orally good is that which conforms with the social norm that prescribes a certain human behaviorD morally evil that which is opposed to such a norm. The relative moral value is established by a social norm that men ought to behave in a certain way. Hnder these presuppositions the statement law is moral by nature does not mean that law has a certain content, but that it is norm > namely a social norm that men ought to behave in a certain way. Then, in these relative sense, every law is moral$ every law constitutes a > relative > moral value. )nd this means$ The 1uestion about the relationship between law and morals is not a 1uestion about the content of the law, but one about its form. The law constitutes a value precisely by the fact that it is a normD it constitutes the legal value, which is a -relative. moral valueD which merely means that the law is a norm. SEPARATION OF LEGAL AND (ORAL ORDERS If it is assumed that law is moral by nature, then, presupposing an absolute moral value, it is meaningless to demand that the law ought to be moral. #uch a postulate is meaningful only if the legal norms does not depend on their conformity with the moral order. It is paramount and cannot be emphasi<ed enough to understand that not only one moral order exists, but many different and even conflicting onesD and that above all, the udgement of what is morally good or evil, morally ustifiable or un ustifiable, is sub ect to continuous change, as is

the law, and that a legal order that at the time of its validity may have conformed with the postulates of the moral order then prevalent, may still be udged to be immoral today. The thesis re ected by !ure Theory of &aw$ That law by its nature must be moral and that immoral social order is not a legal order, presupposes an absolute moral order, that is, one valid at all times and places. 2therwise it would not be possible to evaluate a positive social order by a fixed standard of right and wrong, independent of time and place. In its actual application by the science of law prevailing in a certain legal community, this thesis amounts to an uncritical ustification of the national coercive order that constitutes this community. The dubious standard of an absolute morality is applied only to the coercive order of other nations. Crom the point of view of science of law it must be re ected because it is not the task of this science to ustify the law by absolute or relative moralsD but to know and describe it. CO((ENTS +Y PATON ON THE PURE SCIENCE OF LA& /elsen wishes to free the law from the metaphysical mist with which it has been covered at all times by the speculations on ustice or by the doctrine of ius naturae. 4e desires to create a pure science of law, stripped of all irrelevant material, and to separate urisprudence from the social sciences as rigorously as did as the analysts. #o the urists, if he is to be scientific, must study the legal rules abstracted from all social conditions. /elsen refuses to define law as a command, for that introduces sub ective and political considerations and he wishes his science to be truly ob ective. /elsen wishes to separate the realm of urisprudence from the natural sciences. The latter deals with cause and effect. &aw on the other hand does not attempt to describe but rather to prescribe certain rules, to lay down standards of action which men ought to follow. Cor /elsen, we cannot adopt the easy method of defining law$ The modern tendency to regulate so many of the affairs of the private citi<en means that the sphere of law is daily increasing. "ustice is not a satisfactory concept for a science of pure law, as K ustice is irrational ideal@ > that is, it cannot be clearly defined by reason. "ustice for many rules may be un ust, but they do not therefore cease to be law.

The law does not state what actually does happen, but lays down what ought to happenD yet if the legal order is to be effective, it must secure a certain measure of acceptance. The sphere of urisprudence, then, is a study of the nature of this hierarchy of norms, validity of each norm depending on its being laid down in accordance with a superior norm until we reach the final norm which imposes an obligation on a particular individual. It is difficult to appreciate the significance of /elsen@s work until the application of theory is understood, but for the present we are concerned only with the bearing of his theory on the problem of the boundaries of urisprudence. 4is claim that he has created an impartial and universal science is ustified, but we are not left with the dry bones of the law deprived of the flesh and blood which give them life. /elsen is not alone in his disgust at Kpolitics mas1uerading as urisprudence@. /elsen is correct in showing that law is a weapon that may be used to effect many end. /elsen@s work is also valuable in its emphasis that in executing the norms of law the udge has much discretion > it is impossible for any general rule to provide for all contingencies, and the general rules must be made precise by those who have the duty of applying them. 9ut, in order to maintain the air of impartiality, /elsen regards as outside the scope of urisprudence all discussion of natural law, and all the examination of the sources whence the udge draws his rules when there is no authority in point. This leaves the science of law very Kpure@, but deprives it of all interesting contact with life itself. To exclude the whole of sociology and of ethics leaves urisprudence but a mental exercise in abstract notions. /elsen@s methods does not even even give us a true picture of law, for urisprudence must go beyond the formal hierarchy of norms to study the social forces that create law. The doctrine of natural law has certainly been abused, but is urisprudence therefore to ignore the whole 1uestion of ethicsG The pure science of law is narrow one, and it must be complemented by other and broader approaches.

CHAPTER )I THE FUNCTIONAL SCHOOL

THE SCOPE AND PURPOSE OF SOCIOLOGICAL JURISPRUDENCE +y Ros#o$ Po %" SCHOOLS OF JURISTS AND (ETHODS OF JURISPRUDENCE It has been possible to divide the urists into three principal groups$ %. !hilosophical #chool 1.1. %;th (entury &aw8of8Aature #choolD 1.2. 5etaphysical #chool > during the first half of %7th centuryD and, %.*. #ocial8!hilosophical #chool > the Aeo84egelians seems to have the most fruitful program '. 4istorical #chool '.%. German 4istorical #choolD and '.'. 3nglish 4istorical #chool *. )nalytical #chool Instead of a further variation of one of the old creeds, a wholly new creed is framing, may be styled the$ #ociological #chool. 15 ANALYTICAL JURISPRUDENCE The analytical urists pursues a comparative study of the purposes, methods and ideas common to developed systems of law by analysis of such systems and of their doctrines and institutions in their matured forms.

!utting differences and taking of diversities

4ence, it is appropriate to a developed system only. In its crudest form, this is expressed in )ustin@s dogma that a law is a command. The kernel of it is that law is a product of conscious and increasingly determinate human will.

The )nalytical #chool characteristics may be said to be$ %. They consider developed system onlyD '. They regard the law as made consciously by lawgivers, legislative or udicialD *. They see chiefly the force and constraint behind legal ordersD +. Cor them the typical law is a statuteD ,. Their philosophical views are usually utilitarian or teleological. 75 HISTORICAL JURISPRUDENCE In opposition to the analytical urist, the historical philosophical urist agree that law is found, not made. urist and

They deny that law is a product of a conscious or determinate human will. They hold that the living organs of law are doctrinal writing and udicial decision, whereby the life of a people, expressed in the first instance in its traditional rules of law, makes itself felt in a gradual development by molding those rules to the conditions of the present. 4ence, the historical urists may be characteri<ed thus$ %. They consider the past rather than the present of the lawD '. They regard the law as something that is not and in the long run cannot be made consciouslyD *. They see chiefly the social pressure behind legal rulesD +. Their type of law is customD ,. )s a rule, their philosophical view have been 4egelian. 85 PHILOSOPHICAL JURISPRUDENCE The philosophical urist studies the philosophical and ethical bases of law, legal systems, and particular doctrines and institutions, and critici<es them with respect to such bases. In comparison with the analytical and historical urists, the philosophical urists888 %. )re more apt to consider the ideal future of law than its past or presentD '. 9elieve that when law is found, its principles may, and as a matter of expediency, should be stated definitely and in certain formD

*. &ook at the ethical and moral bases of rules rather than at its sanctionD +. 4ave no necessary preference for any particular form of lawD ,. 4old very diverse philosophical views. 95 RISE OF A SOCIOLOGICAL SCHOOL * THE SOCIAL PHILOSOPHICAL SCHOOL The first movement in the new direction was from the then dominant historical school in Germany. 15 THE POSITI)ES * THE (ECHANICAL STAGE &ike the historical urist, the first type of sociologist looked at law in its evolution, in its successive changes, and sought to relate these changes to the changes undergone by the society itself. ) later form of what is essentially the same type of uristic sociology is to be seen in attempt to state all ural experience solely in terms of economics. The doctrine has been set forth in its most extreme form in )merica$ &aw is the resultant of forces which arises from the struggle for existence among men. The dominant class will shape the law to favor themselvesE The earlier type of sociological urist@ service was in twofold$ %. =isplacing the individualist starting8point by insisting upon the importance of the group, of the class, of the compact pluralityD '. (ompelling us to relate the law more critically to other social phenomena. 75 THE +IOLOGICAL STAGE =arwin had made evolution the central idea in scientific thought. The urists were attractted by the conception of natural selection$ the end of law is to give free play in an orderly and regulated manner to the elimination of the unfit, to further selection by a well8ordered social struggle for existence.

85 THE PSYCHOLOGICAL STAGE Three influences combined to turn the attention of sociological urists towards psychology$ %. #tudy of group personality and group will, leading to a psychological movement in legal and political philosophyD '. The complete change in method in the social sciences which resulted from Bard@s thesis that psychic forces are as real as physical forcesED and, *. Tarde@s demonstration of the extent to which imitation is a factor in development of legal institutions. 95 THE STAGE OF UNIFICATION )t the very end of the last century sociologists were coming to see that no one of the methods worked out was the whole of sociology. ) few years later, Bard enumerated twelve leading sociological conceptions or unitary principles each of which had been put forward with large claims to being in and of itself the science of sociology. THE PRESENT STATUS OF SOCIOLOGICAL JURISPRUDENCE #ociological urists today insists upon six points$ %. #tudy of the actual social effects of legal institutions and legal doctrinesD '. #ociological study in connection with legal study in preparation for legislationE. 9ut it is not enough to compare the laws themselves. It is much more important to study their social operation and the effects which they produce, if any, when put in actionD *. +. ,. #tudy of the means of making legal rules effectiveD ) means toward the end last considered is a sociological legal historyD The importance of reasonable and ust solutions of individual causes, too often sacrificed in the immediate past to the attempt to bring about an impossible degree of certaintyD

6.

5ake effort more effective in achieving the purpose of law.

(omparing sociological urists with insists of the other schools we may say$ %. They look more to the working of the law than to its abstract contentD '. They regard law as a social institution which may be improved by intelligent human effortD *. They lay stress upon the social purposes which law subserves rather than upon sanctionD +. They urge that legal precepts are to be regarded as guides to result which are socially ust and less as inflexible moldsD and ,. Their philosophical views are very diverse. CO((ENTS +Y PATON ON THE FUNCTIONAL SCHOOL The fundamental tenet of this school is that when we cannot understand what a thing is unless we study what it does. Bhat attitude should urisprudence take to the 1uestion of the values that direct the development of lawG /elsen would retain the scientific method. 9ut !ound considers that they must be analy<ed thoroughly in order to understand legal development. Cor !ound, law is also a process of balancing conflicting interests and securing the satisfaction of the maximum of wants with the minimum of friction.

CHAPTER )II THE REALIST SCHOOL

THE PATH OF THE LA& +y Oli/$! &$%"$l Hol1$s
Bhen we study law we are not studying a mystery but a well8known profession. Be are studying what we shall want in order to appear before udges, or to advise people in such a way as to keep them out of court. The means of the study are body of reports, of treatise, and of statutes.

) legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by udgment of the court. If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material conse1uence which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct. Aowhere is the confusion between legal and moral ideas more manifest that in the law of contract. The duty to keep contract at common law means a prediction that you must pay damages if you do not keep it. If you omit a tort, you are liable to pay a compensatory sum. CO((ENTS ON THE REALIST SCHOOL +Y PATON The realists defined law not as a set of logical propositions but in terms of official action. Hntil a court has passed on certain facts, some realists argued, there is no law in the sub ect yet in existence, for the opinion of lawyers is only a guess as to what the courts will decide. #ince law is define in terms of official action -and not of the rules which should guide action., it follows that any force that will influence the udge in reaching the decision is a fit sub ect for urisprudence. &aw can have a little weight in legal evolution. #ociety is always changing, moral udgments are developing, and the law therefore is in a state of flux. ?ealists insisted that to know what a thing is one must see what it doesD that rules of law must be assessed by reference to their conse1uences. !erhaps the most immediate and most important influence of )merican legal realism was upon legal education. The concentration about the problems to be solved rather than upon the formal and authoritative explanations of how they had been, or ought to be, solved, changed the whole nature of legal education. Those changes brought decline among law students in their understanding and appreciation of the internal discipline and coherence of systems of law viewed as rules and principles.

CO((ENTS +Y JERO(E FRAN,, &HAT COURTS DO IN FACT 4ow then a udge arrive at his decisionG 4e does so by a hunch as to what is fair and ust or wise or expedient. )ccording to Crank$ %. #pecific enforceable decisions in concrete cases are of the essence of the lawyer@s workD '. #pecific decisions are the result of the udges@ hunchesD *. To predict or bring about decisions, one should know about what produces udicial hunchesD +. The so8called legal rules and principles are some of many hunch producersD ,. Bhatever may be the stimuli to the making of those hunches, may loosely describe the udge@s personalityD 6. Aeither the background stimuli nor the congeries labelled udge@s personality are stated or statable in terms of the conventional legal rules and principlesD :. The failure to recogni<e the composite nature of this hunch and the artificial breaking up of the decisional process into rules and facts accounts in part for the delusion of the formalist as the exclusive value of the rules. ;. The formalist errs also in overlooking that circumstance that it is impossible to predict what cases will be contested and the sub ective nature of the facts of a contested case and the resulting unchangeability of the udge@s statement of those facts. 7. The formalist conveniently neglects the ury.

CHAPTER )III THE CO((UNIST THEORY

,ARL (AR: 5arx@s ideas, particularly the prospect of inevitable liberation of the working classes from bondage and oppression through revolutionary action made a strong impression on ?ussian radicals. LENIN ON (AR: 5arx@s teaching is complete and harmonious, providing men with a consistent view of the universe, which we cannot be reconciled with any superstition, any defence of bourgeois oppression. The three components of 5arxism are$ %. The philosophy of 5arxism is materialism. !rovided the humanity, 1 and especially the working class, with a powerful instrument of knowledge. '. 5arx devoted all the greater attention to the study of economic order, having recogni<ed that it is the foundation upon which the political superstructure is erected, i.e. capitalist society. The doctrine of surplus value is the cornerstone of the economic theory of 5arx.
3.

)fter the overthrow of serfdom, freedom signified a new system of oppression and exploitation of toilers. 5arx answered this with the doctrine of the class struggle, to enlighten and organi<e for the struggle, from the power capable of sweeping away the old and establishing the new.

CHAPTER I: THE POLICY SCIENCE SCHOOL LEGAL EDUCATION AND PU+LIC POLICY; PROFESSIONAL TRAINING IN THE PU+LIC INTEREST +y Ha!ol" D5 Lassw$ll a%" (y!$s S5 (#"o 4al
The reform of legal education must become more ever more urgent in a revolutionary world of cumulative crises and increasing violence.

)de1uate training must therefore include experiences that aide the developing lawyer to ac1uire certain skills of thought$ %. Goal thinking > to promote the ma or value of democratic society and to reduce the number of moral mavericks who do not share democratic preferencesD '. Trend8thinking > this considers the shape of things to come orient himself correctly in contemporary trends and future probabilities. *. #cientific8thinking > to build up scientific knowledge. CO((ENTS +Y CRISOLITO PASCUAL ON THE POLICY SCIENCE OF SCHOOL OF JURISPRUDENCE AND ITS THEORY OF THE NATURE OF LA& The goal of the law is the creation of a world community conceived in mutual respect, understanding and rectitude, where the different representative social values or desirable ob ects of human desires are widely and e1uitably shared. The law becomes meaningful only when considered as the vehicle or machinery to reali<e the end in view.

CHAPTER : NATURAL LA& ST5 THO(AS A<UINAS, THE SU((A THEOLOGICA

&aw is a rule and measure of acts, whereby man is induced to act or is restrained from acting. The rule and measure of human acts is the reason. power of moving from the will. ?eason has its

3very act of reason and will in us is based on that which is according to nature for every act of reasoning is based on principles that are known naturally. "ustice has its source in natureD thence certain things came into custom by reason of their utilityD afterwards these things which emanated from

nature and were approved by custom, were sanctioned by fear and reverence for the law. In temporal law there is nothing ust and lawful, but what man has drawn from the eternal law. Cirst precept of law$ Good is to be done and ensued, and evil is to be avoided. )ny point deflecting from the law of nature, it is no longer a law but a perversion of law. CO((ENTS +Y JAC<UES (ARITAIN ON ST5 THO(AS A<UINAS #t. Thomas succeeded in constructing a philosophical and theological wisdom so elevated in immateriality that it is really free of every particulari<ation of race or environment. 4is metaphysical principles were based upon ob ective reality. FOR A RE)I)AL OF NATURAL LA& DOCTRINE IN PHILIPPINE JURISPRUDENCE +y J=!4$ R5 Co> ia There has been a sudden increase of law schools, but a meager few have ever attempted seriously what legal philosophy they should stress to students. 2ne of the causes is the confusion that there have been many different approaches to what proper end of law is. There is no denying of the fact that in each attempt to enunciate a new philosophy of law, human experience has led to insoluble difficulties and to inescapable inade1uacies. The ideological conflicts in our times have forced the return to the natural law way of thinking thus giving truth to what Gilson once said that the natural law buries its own undertakers.