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. BobbsMerill Co. READINGS IN JURISPRUDENCE. Indianapolis: The

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.

xxx. Prof. manners and constitution. peculiar to the people. The sum. 87-88. ORIGIN OF LAW: COMMON CONSCIOUSNESS OF THE PEOPLE In his book On the Vocation of our Age for Legislation and Jurisprudence. Freidrich Karl von Savigny and Prof. The founders of the historical school were Prof. -. 71). therefore. of this theory is.. next by jurisprudence. that all law is originally formed in the manner. therefore.. in which. Eichhorn. published in Germany in 1814. not by the arbitrary will of a law-giver. the leading voice of the historical school. 70). customary law is said to have been formed: i.everywhere. (Hall. xxx.FOUNDERS OF HISTORICAL SCHOOL In terms of chronology the historical school was preceded by the philosophical school or the natural law school. in ordinary but not quite correct language.e. Savigny. by internal silently-operating powers. the kindred consciousness of an inward necessity xxx. underscoring supplied) . that it is first developed by custom and popular faith. xxx These phenomena xxx are but the particular faculties and tendencies of an individual people xxx. like their language. who taught law and jurisprudence at the University of Berlin in the early part of the 19th century (id. In fact. That which binds them into one whole is the common conviction of the people. the law will be found to have already attained a fixed character. the historical school was a reaction to the philosophical school or natural law school (Pascual. 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.

xxx. and the peculiar characteristics of a national are exhibited in its System of Right. xxx The historical spirit. xxx. refers to Law and Jurisprudence. by the omission of certain prominent peculiarities. G. is the only protection against a species of self-delusion xxx. This individuality forms what we call the national or popular character. growth and development of law and jurisprudence: (NOTE: The use of the word Right. in times past. published in Germany in 1887.A Juristic Encyclopedia. who hold their juridical notions and opinions to be the offspring of pure reason. On the contrary he held the theory that law is "particular or peculiar" to a people. "common consciousness" and "national mind or spirit of the people" as a basis of the origin. author of the book Outlines of Jurisprudence as the Science of Right . whose customs. dissimilar and unequal in nature and tendency. for no earthly reason but because they are ignorant of their origin. Thus. with capital R. infra). speaks of the "national or popular character". F. as used by Prof. and a disciple of the historical school. namely. Prachta. too.CRITICISM OF THE NATURAL LAW SCHOOL Prof. which is. Hence the Rights of peoples are different. . which was looked upon as the immediate emanation of reason. just as in its Language and Customs. The Peoples are themselves to be regarded as different individualities. history and culture may be different from those of other peoples and cultures in the world. in the following quotations. a natural law was formed our of the (Roman) Institutes. Puchta. and yet we meet with people daily. the main foundation of the theory of the natural law school. Savigny did not believe in the concept of "universality" of law. There is no one now who would not regard this proceeding with pity. next to "pure reason" or "rationalism".) NATIONAL MIND AND SPIRIT OF THE PEOPLE: ORIGIN OF LAW Prof. the holding that which is peculiar to ourselves to be common to human-nature in general. (id.

in a word. against its universalism. . Natural Law and the Theory of Society. and of the convictions of Right which stir and operate in the minds of the individuals. It has thus the property of a common practice or Custom. its extends beyond the intimacy of the inner family bond. and it adapts itself to the changing wants and requirements of the People. ROMANTIC MOVEMENT AND VOLKSGEIST AND VOLKSRECHT Prof. because it stands nearest to the primary source of all human Right. This union rests upon a certain relationship of body and mind. xxx (The System of Right) develops with the People. in their immediate origins. xxx. published in Cambridge in 1934. Ernest Barker. A principle of Right becomes a fact by being recognized as such in the common conviction of those to whom it is applicable. in a reaction against Natural Law . Through this common consciousness of Right. Instead of pure ratio. (id. and is immediately connected with it. and hence the Right that has arisen in this form is called CUSTOMARY RIGHT. as reflected in the Consciousness of its members. xxx. as by common Language and a common Religion. 89-91. The consequence of this mode of origination induces a diversity of Right among the various peoples. there was to be substituted the Volksgeist xxx.All human Right presupposes a common Consciousness as its source. and it is the source of human or natural Right. The Conviction of the People. discussing the roots and theoretical foundation of the historical school in his book Introduction to Gierke. is the first of the modes in which Right arises. the national mind or spirit of the people. the members of a people are bound together in a definite union. wrote: The beginnings of the School of Historical Law in Germany are rooted.a reaction against its rationalism.. It attaches itself to the national character at its different stages of culture. and arises out of an actual division of the race of mankind. xxx. Right is the common will of the persons or members who are included in a sphere of Right. and against its individualism. underscoring supplied). xxx. The consciousness which permeates the members of a people in common xxx constitutes.

people or nation.. folk tales. xxxx From the observation post of historical jurisprudence. even social values proceed from the substratum of the folk-soul. Volksgeist means the diwangsambayanan. 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. the . it is xxx oriented to the time. Volksrecht means kautusanngsambayanan. which is the basic foundation of historical jurisprudence. that is to say. xxx . Like a people's language and other cultural attributes. In the words of Emil Lask. place. 91-92). there is not only one and the same law for all peoples everywhere. Filipino legal-philosophy author Prof. is essentially Volksrecht: it is the product of each nation. and from people to people. language. the life and spirit of the people. (id.and individuality of a particular people. i.Law.e. which is to say that positive law should be a reflection of the common consciousness and spirit of the people. on this view. provides a sense of beginning and unfolding of law. and literature.. Barker. character. (Law) is only national. the law is not universal. xxx. The reason for this is that social milieu varies from time to time. from place to place. that the historical school is "a philosophy of the Folk (people)" expressed in folk songs. which are not found in others. Pascual summarizes the volksgeist and volksrecht thus: xxx The folk-soul. writes that the roots of the historical school may be traced to "the Romantic movement xxx as early as 1770". Prof. xxx. summarizing the theory of the historical school. of the national genius. FOLK-SOUL AND FOLK-MIND The German word Volks means sambayanan.

Each element is a treasury of the national character of the people. Together they reveal the people's cultural identity. 1. xxx. Folklore This element is composed of the beliefs and traditions of a . Customs. Longings. xxx (Pascual. the acknowledged leader of historical jurisprudence in England. Pascual on his discussion of the elements of the folk-soul: The folk-soul is composed of several elements. 71-96. law of a group of people is peculiar only to that group. beliefs. superstitions. underscoring supplied). PHILIPPINE FOLK-SOUL AND FOLK-MIND Applying the analytical perspective of the historical school to the origin. (id. and prejudices of a people produced by institutions of human nature reacting upon one another. growth and development of Philippine law and jurisprudence. according to Prof. xxx. Arts. means the people's: Opinions. and even Superstitions. OBLUTIACS: ACRONYM FOR THE ELEMENTS OF VOLKSGEIST AND VOLKSRECHT Constituting the folk-soul or folk-mind of a people are their OBLUTIACS. Traditions. an acronym which. Pascual. Beliefs. Idiosyncracies. Together they form the common consciousness and intelligence of the people. In different words. this Report extensively quotes Prof.law is the product of the genius or intelligence of that group of people. In the words of Sir Henry Summer Maine.). Usages. the law is the product "of the huge mass of opinions.

which are very rare. 3.. where DatuSumakwel's code of laws is found.. xxx. like the Darangan. Folksaying This element of the folksoul is composed of the opinions xxx. xxx. xxx. the Biagni Lam-ang. . Sentiments are more or less the settled sense of the people. notably the Indarapatra. the epic of the Bornean colonizers of the Island of Panay. The folksaying is composed of the proverbial maxims (salawikain) and sentiments (sabi) of the people. the epic of the Ilocano region. xxx an ancient narrative of the various phases of the early life in the Bicol region during the reign of Handiong. A good example in the Philippines is the epic of Ibalon. Folkway xxx It is composed of usages and customs. the rural reflections of a people. There are others. the epic of the Muslims of Lake Lanao. Maxims are short pithy statements containing a general doctrine or truth. They constitute of the folk learning or folk wisdom (paniniwala) xxx. xxx. The folklore may survive in the form of epic tales. the Tuwaang of the Bogobos of Davao. 2.people. underscoring supplied). But a great deal of people's beliefs and traditions have survived in the form of telling parables (talinghaga) and riddles (bugtong). (id. which is recorded in the Maragtas.

xxx There are appropriate folk dances dedicated tot he people's object of reverence and awe. Later came the objects of beauty and color. xxx. and aspirations (adhika). xxx. or fertility. longings (mithi). Thus. and folkdances which have to do with love and affection like dances of courtship. folkdances which have to do with ceremonials like war or hunting. To a great extent the first objects were basically utilitarian or symbolic. folkways or kaugalian have become definite norms of activity and conduct. Folkart xxx This category. . folkways provided the first sources of rules xxx. 6. xxx Thus in the early times. xxx. xxx. Folkdance xxx It is possible that they were regarded as religious ceremonies in the beginning. 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. broadly known in Pilipino as sining.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. rejection. 4. xxx. lamentations (panaghoy). is composed of the skill and art peculiar to a people. Folksong xxx This form of expression of a people's interests and feelings contains their rejoicings (diyuna). folkdances connected with celebrations or play like wedding or thanksgiving. 5. folkdances related with work like planting and harvesting. xxx.

. a professional group in the community and where the people were bound by common centers of interests and purposes. the process of keeping peace and order grew apace with it. "where the individual. the state is regarded as the highest expression or personification of the volksgeist or diwa of the people. 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. it is the highest national structure erected by the socio-political development of the people. and practiced by. and. a direct appeal to the head of the family or clan was enough to resolve human conflicts. Eventually. without shedding his narrower relationship with his family and region. At the family-clan level.. xxx The State is thus considered as the highest expression of the folk-soul or diwa of a people. something like a communal type of dispute resolution mechanism emerged. Indeed. i. became related.(id." (id. 92-95. 86. (id. the State with a national government. where the reins of government were placed in the hands of. original underscoring by the author). a sense of national awareness grew among the people. 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 body politic is . the law lis found and not deliberately made. to the national interests..e. the pattern of dispute resolution and maintenance of peace and order gave way to the more complex machinery of the body politic. In another way of saying it. As progress continued. underscoring supplied). as progress became more complicated. even subordinated. 87). in certain instances. Second. Following the above-mentioned pattern of expansion of human relations of the people.

the folksoul (which) awakens this conviction xxx. but is the product of common conviction xxx. (id. 88. 87-88.. 36 Harvard Law Review.. decision making. The growth of law is a historical process. and (that) the law is historically determined. . codification. "history built up the system and the law that went with it. 89)." (id. therefore. not imposed. It does not proceed from the peremptory or arbitrary will or wish of the legislators or judges. 822 [1923]). Quoting Dean Pound. 802. In the words of Mr. citing Prof. "the law is not deliberately made by the effort of human reason. who wrote that "the institution of the State is the highest act of a people. 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. "Asian values" differ from those of the Western world. (id. xxx. This is the most fundamental precept of the historical school." (id. it is found. Justice Cardozo. LAW IS HISTORICALLY DETERMINED In the view of the historical school. Pascual writes: xxx Reason alone cannot work miracles in legal development nor work wonders in constitution making. or legislation. 88).considered by historical jurisprudence as the final juristic personification of a nation or people. citing Dean Pound.."). Puchta.

its "oblutiacs" and national consciousness or national spirit. one that is dictated upon on the people without their consent. A legal system that is divorced from the spirit and the soul of the people. 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. IlongoHiligaynon). Aeta. with at least eight major dialects (Tagalog. Panggalatok.it must be open to other schools of thought in legal philosophy and. Tasaday. the soul. in all other areas of human life. which its people have shared. pursuant to the policy of multiculturalism (as in the case of the United States. 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. Integrating their customs and traditions into the national legal mainstream. in fact.). fifty years of American rule. lived and practiced since time immemorial -. Waray. to be rejected -. direction and vision. is destined to be rejected by its supposed beneficiaries and its supposed source of sovereignty. the Philippines also knows that -.e. Kapampangan. long before the Westerners "discovered" Asia. Cebuano.in the light of current trends towards globalization. as a nationstate. and five years of Japanese regime.among fellow Asians. has achieved a remarkable degree of maturity. The law is the very identity. self-confidence. Ilocano. Otherwise.. it is safe to say that at the present stage in its contemporary political and legal history the Philippines. etc. It thus must harmonize in a beautiful cultural and philosophical symmetry with their oblutiacs. However. it is doomed to fail.and. Igorot. Ibanag. to be ignored. The Philippines is a multi-cultural society. to be a cause for rebellion and dismemberment of the nation. . the Philippines has suffered from "identity crisis" brought about by more than three centuries of Spanish colonization. Bicolano. 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 -.Despite the fact that for a while since 1946. i. 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. instead of being its unifying and stabilizing fiber. Mangyan. the spirit and the core of the people. The Philippine knows its roots. not to mention the dialects of its various cultural minorities (Tausog. to be forgotten. worst.

especially in the modern times and in the light of international law. * There are certain principles. consciousness. . as they relate to law and jurisprudence. regardless of time and space. * It tends to promote juristic instability as the oblutiacs of various cultural minorities may not be in line with the shared mainstream oblutiacs. regardless of cultural and racial origins of peoples and political boundaries of men. there are basic principles of law and jurisprudence that are." 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. Enlightened Reason. however. so to speak. 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. universal and objective in nature. inalienable and universal human rights. indeed. and regardless of location and culture. in that: * It fails to give proper importance to the fact that in certain fundamental legal issues. must respect. spirit. the perspective of the historical school is limited. especially those of morality and ethics. growth and development of law and jurisprudence and in suggesting a conceptual framework that states that law and jurisprudence. * Some customs are per se barbaric. or Natural Law and Natural Justice.THE LIMITATIONS OF THE HISTORICAL SCHOOL The historical school is useful in explaining the origin. inhuman and unreasonable. which are immutable and objective in character and which proceed from an Ultimate Source or an Absolute Good. promote and proceed from their national soul. Despite its usefulness as a tool of analysis. like the tenets of inherent. * It tends to discourage law reform. customs and tradition. if they were to be binding on a people.

freedom. reason and truth -. When one studies the philosophy of law. compassion. This is a basic postulate in the historical school of law. Oxford. the Medieval period. Legal philosophy is rooted in the history of philosophy itself. POSITIVIST SCHOOL This school of thought developed at Yale. Law and justice are all about wisdom. and the school of modern legal realism. mutual respect. too. the idea that mankind is a family of pilgrims travelling to their final destiny. Emperor Justinian's greatest contribution to the growth of the legal system of the world was his codification of all Roman laws. justice. wisdom. A. sanctions. The Romans made law systematic. reason and truth. as in the areas of family. which was applicable to the legal relations of Roman citizens with aliens ("perigrino") -. contracts. the world saw the rise of Protestant philosophers. and.In the end all schools of thought converge on these basic common grounds and goals: truth. Philosophy means "love of wisdom. peace. During the Reformation Period. slavery. he is forced to study the history of philosophy itself." The ideal law or legal system is one that is rooted in wisdom. have their individual shares in and contributions to the growth and development of the legal and philosophical systems of mankind. it arises out of customs and traditions. the Roman period. etc. persons. which was applicable to Roman citizens. most of all. A COMPENDIUM OF THE VARIOUS SCHOOLS OF THOUGH IN LEGAL PHILOSOPHY Law is evolutionary. fairness. The earliest codified Roman laws were the Jus Civilis. and power. goodwill. Today (modern period).both of which were administered by a "praetor" or a judge. and it develops like language. . There is a need to discuss the salient thoughts of the other schools of legal philosophy which have emerged from the Greek period. and the Jus Gentium. Law is written down and explicit. and Cambridge beleves that there is no law unless it is promulgated by the State. the world saw the rise of the sociological school.as against force. the functional school. They. the Reformation period and the Modern period.

the focus is on "the law as it is". or normative. and empirical. It is not made by God but by a superior sovereign. In his "pure theory of law. is such that it can co-exist with the freedom of the will of each and all. though it may be legal. He is not a chattel. IMMANUEL KANT Kant was an advocate of the natural law theory. An advocate of human dignity (man as end in himself). Dura lexsedlex expresses the meat of the positivist school of law. permissive. B. supremacy of reason and free will (as God-given and inherent in man). it is uniform for all. Duty (to obey and revere the law and to do good to fellow men) is the highest virtue. To Kelsen. Law is not a moral concept. It is the expression of the will of the state. Law is a positive norm of conduct." Kant criticized Rossaeu's social contract theory because Kant believed that human rights are not contracted but are inherent in man (dignity. according to a universal law. law is created by acts of men. In his pure theory of law. equality. commanding. "Every action is right which in itself. who are liable to suffer penalties in case of violation thereof (authoritative enforcement system). Doing an act not out of "duty" (good will) is immoral. . It must be made as exact and as objective as the science of mathematics. i. and mutuality of rights. Law may be prescriptive. To Austin. freedom. law is objective. Coercion and sanctions enforce law. hence. Moral rightness is a matter of "motives" and legal rightness refers to "external acts. authoritative. Natural law and moral law do not matter. His ideal society is one where all men possess the virtue of duty to do good. "Practical reason" (the "good will" in man." Kelsen argued the removal of moral connotations and value judgments from law. not subjective. equality). For law to be stable. authoritative. Kelsen and Hobbes. It is reason that makes law and obeys law. Kant wrote. not by God.e. and universal law of morality. the "empirical imperative") that makes law and compels the conscience of man to obey the law." In his Metaphysics of Ethics. 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).The foremost proponent of the positivist school of law were Austin. Law is objective and precise. or in the maxim on which it proceeds. freedom. Man is a moral individual. Law is the conscious will and command of the sovereign imposed on the subjects. It must be free from metaphysical speculation. of all non-legal elements. not metaphysics. it must be based on empirical science. not on what it ought to be.

Montesquieu wrote that law is an evolutionary process. some interests must give in. "sociology of law." "modern legal realism. FUNCTIONAL SCHOOL The functional school of law developed in the United States. It adheres to." "American legal realism. The greatest good for the greatest number." is the main guidepost of the functional school. It is also called the "theory of sociological jurisprudence". it adheres to the tenets of "pragmatic ethics" or "ethical relativism" as it aims to serve the interests of society with the least friction. is the source of law. MODERN LEGAL REALISM It is sometimes called "social legal realism. Thomas agree that law is based on reason for the common good." In a sense. Law is pragmatic and dynamic. Storm and Holmes. not the folk-soul or the pressures from the powerful elite. Dewey. and social (or jural). or "social utilitarianism. public. C. D. judicial action. where compromise fails." The main factors that define the law are expediency and the convenience of society." or "social science school of law. Kant and St. It focuses on the question: "Will this law work?" Law is one of experience. Law is a tool for the "balancing of interests" in society. social interests).In a sense. purposive legislation." Its proponents were Sanders. and decisive executive action must come in." "theory of ethical and legal pragmatism (empiricism) and experientialism. It is a tool of "social control" or "social engineering. that law is universal. the tools of arbitration. All of these must be considered in the "legal ordering" of society (private rights and obligations vs. Its main proponent is Dean Roscoe Pound. Since not all social conflicts can be compromised." It focuses on the "operation and effects" of law in relation to the interests of society. In social engineering. . and that natural law is inherent in the heart of men. The "interests of society". "legal positivism" and "legal realism. and is actually a type of. There are three kinds of interests: individual.

It is an instrument of social control. the law is what the courts say it is and how the courts interpret and apply it (jurisprudence). It assailed courts for moving from legal analysis and reasoning to law-making (judicial legislation and judicial activism). Out of this school rose the "critical legal studies movement" in the United States. and it called for the democratization of republicanism. empirical and scientific. rituals. is a real person. He is subject to all kinds of real socio-psychological pressures.It believes that the law is what the courts say it is. It exposed the weaknesses of the idealistic concept of democracy. and affected by all kinds of "metalegal stimuli". The movement criticized the doctrine of stare decisis because it entrenched existing injustice in the legal system and that it protected the ruling elite. A law is merely a law on paper unless a case arises to interpret it. popular democracy versus elitist democracy. The movement advanced the vision of positive equality (free open society). It argued that there were "indeterminate factors" in the judicial process which influenced the dynamics of law. In modern legal realism. It is the adjudicative process of the judiciary which defines. It is also relative. The school of modern legal realism criticizes the natural law school or the philosophical school because it believes that law has no metaphysical source. Fact-finding is the most difficult and the most crucial task of courts. with law as an expression of the folk-soul of the people. Law is pragmatic. As stated earlier. Unless a case arises out of the interpretation and enforcement of a written law.e. there is no law because there is no judicial interpretation. The end of law is "social contentment"." Moral norms and natural law postulates do not decide court cases or determine social behavior. and the doctrine of duralexsedlex) did not serve democracy and justice and that many legal procedures. . The source of law is the social experience of the people. an imperfect human being. formalities and technicalities impeded the administration of justice and alienated the people from the justice system. It focuses its study on "the law that is". The judge. Justice is equated with equality. That is the true source of law and the nature of law. It argued that legal objectivism and legal formalism (legal positivism. The official promulgation of a law is not necessarily equal to the justness of its contents. the emphasis is on the judicial process. with biases and prejudices. the coldness of the law. interprets. congressional acts are not law but are a source of law. In this school of thought. and applies the law. not on "the law that ought to be. who determines and applies the law. flexible and dynamic. 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. i. which.

Human history is the history of class struggle. and state and law will "wither away" (utopia). the people govern themselves (self-government). with one political party in control of the state whose vision and mission are to serve the interests of the working people). class struggles ends. MARXIST OR COMMUNIST SCHOOL Karl Marx applied Hegel's dialectical method. the state must keep class conflicts within bounds of order (hence." In the transitional stage. "The workers must destroy the state. the "dictatorship of the proletariat" is necessary to smash the control of the capitalist class. communal life rules human relations. define. Historical materialism provides that the economic system is the infrastructure of the political system (economic determinism). Marxism calls for the absolute abolition of private property. The theory of surplus value provides that labor is a commodity that creates surplus value which is exploited by capitalists." From this theory proceeded the concepts of "class struggle" (laborers versus capitalists). supremacy of the State. surplus value. and the state owns all means and modes of production. and the inevitability of war among capitalist states caused by competition. and class struggle. class antagonism. The ruling elite (capitalists) determine. There is a perpetual struggle between the productive forces (labor) versus those who control the tools and modes of production (capitalists). Three major theories predominate Marxism: historical materialism. Wage labor does not create property but it begets capital for exploitation by the capitalists.E. Lenin wrote that state and law are instruments of class oppression. Marxism identifies with the proletariat (workers). fix and impose the law on the exploited working class. . In the interim (socialism). greed and technology. and not simply seize it. a classless society will be born. state and law wither away. When utopia is achieved. classless society is created. and the exploitation of one class by another. He was the proponent of "dialectical materialism. the need for centralized economic and political planning. The theory of class struggle provides that only the working class can destroy the old system and ultimately create a classless society. When the working class shall have ultimately succeeded in destroying the old system. Arguing for collectivism and centralized economic planning. Law is a product of the economic system of society.

Thomas wrote the voluminous Summa Theologica. the latter being the . Every concept leads to its opposite (thesis-anti thesis-synthesis) and that there is an unending progress from thesis to antithesis and to synthesis. knowledge or enlightenment. truth. that it is a means for the equitable distribution of the social values.F. NATURAL LAW PHILOSOPHY The natural law school of legal philosophy was advocated by the Catholic Church and its theologians. The precepts of natural law are inherent in man and are written by God and reason in his heart. compassion. reason is the ultimate essence of the world or absolute reality. and peace. These values are translated by means of policy guidelines of the state. The policy science school is thus an advocacy of social values. dignity. Thomas Aquinas. a great Greek philosopher. He described natural law as the participation of man in eternal or divine law thru his gift of reason. freedom. Hegel was an "speculative idealist" and an advocate of rationalism: "Whatever is rational is real and whatever is real is rational. A law is obeyed because of the persuasion of reason (reasonableness test). St. that it is a continuous process of democratization of social values. Expounded by Lasswell and McDougal (Yale University). Like Schelling and Fichte. Thomas adopted and christianized the thoughts of Aristotle. H. e. A law which is contrary to divine law is no law at all. respect. HEGELIAN PHILOSOPHY Immanuel Kant influenced Hegel in his philosophy of law. love. G. St. safety and health. The Catholic Church dominated the medieval period and it had the best opportunity to develop the philosophy of natural law during such period. the quest for justice." To him.g. foremost among whom was St. and that the seven basic social values (power. liberty and equality) should guide law-making and the legal ordering of society. POLICY SCIENCE SCHOOL The policy science school of law developed at the Yale School of Law. equality. income or wealth. the policy science school argues law is not a mere body of rules.

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. He wrote that all history is an evolutionary process whose ultimate goal is true liberty. being of common law origin. are codeoriented. JURAL AND NON-JURAL LAWS Jurisprudence is a science of how the law is applied by the courts.. opinions of jurists. while most countries in Europe. This is called the "dialectical method" (the triadic process). statutes. ethics culminates in the state and the state is the ethical idea and reason turned into reality: "In the organization of the state." He preferred the authoritarian state. which are of positive law origin. natural law and the folk-soul of the people may be said to belong to the category of non-jural law. It answers the question: What does the court say? Its basic foundation is the doctrine of stare decisis.reconciliation of thesis and antithesis on a higher level. and court decisions. which may not be enforceable in court and yet influences the way jural law is applied by the courts.. the divine enters into the real. customs and traditions.g. Divine law. moral law. . and that liberty is only possible in a state. e. Jural law is the "lawyer's law" enforceable in court." It is part of the concept of man that he is free. he opposed the democratic or republican form of government because of its "subjectivism and atomism. I. Non-jural law is the "unwritten law". Hegel justified war or revolution based on and as an application of the dialectical method (struggle of ideas).. where man reaches his dignity as an independent person. The paradox was that in his latter years. Hegel wrote. . are precedentoriented. private contracts." The state is a manifestation of the divine will. To Hegel. administrative rules and regulations.g. The United States and the United Kingdom. e.

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