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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.
by:
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 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).
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:
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.
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.
(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 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.
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:
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.
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
xxx
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:
1. Folklore
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.
2. Folksaying
xxx.
3. Folkway
4. Folksong
5. Folkdance
6. Folkart
Pascual writes that from the viewpoint of the historical school there are two
important points that stand out:
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:
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.
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.
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.
* 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 promote juristic instability as the oblutiacs of various cultural minorities may
not be in line with the shared mainstream oblutiacs.
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.
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 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.
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 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.
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.
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.
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.
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.
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.
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.