READINGS IN LEGAL PHILOSOPHY AND THEORY CHAPTER I INTRODUCTORY CHAPTER DEFINITION, NATURE AND FUNCTION

Philosophy i s t a k e n f r o m t h e G r e e k w o r d s , Philos and Logos, w h i c h 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 i s t h a t b r a n c h o f p h i l o s o p h y w h i c h d e a l s w i t h t h e wisdom of law. It studies the nature of law with particular reference to t h e origin and end of law, and all the principles that g o v e r n i t s formulation. It is part of practical philosophy. The object 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 object is Juridical Science or Jurisprudence.

Parts of the system of Juridical Science are: 1.Public 2.Private Law Law

Parts of Public Law are: 1.Constitutional Law 2.Administrative Law 3 . P e n a l L a w

4.Procedural Law 5.International Law

Parts of Private Law are: 1 . C i v i l L a w

2.Commercial Law

3. Those that govern relationships among individuals or juridical entities. J u r i d i c a l Science can only inform the people of the law among certain p e o p l e in a g iven period, answering only the q uestion of what is e s t a b l i s h e d b y l a w o f a c e r t a i n s y s t e m ( quid juris) . P h i l o s o p h y o f l a w , however, transcends the competence of each individual juridical science. I t c o n s i d e r s t h e e s s e n t i a l e l e m e n t s w h i c h a r e c o m m o n t o a l l j u r i d i c a l systems (Kant). A c c o r d i n g t o G i o r g i o d e l V e c c h i o , P h i l o s o p h y o f L a w “ i s t h e c o u r s e o f study which defined law in its logical universality, seeks its origins and g e n e r a l c h a r a c t e r i s t i c s o f i t s h i s t o r i c a l d e v e l o p m e n t a n d e v a l u a t e s i t according to the ideal of justice drawn from pure reason.

FUNCTION OF PHILOSOPHY OF LAW Philosophy of law is a quest of law which appeals to reason to obtain justice. One function of philosophy therefore is to formulate law that is reasonably acceptable to the people to whom it is addressed. Philosophy of law therefore is opposed to tyranny. The practical function of philosophy is that it teaches and prepares for the positive recognition of the juridical ideal.

CHAPTER II HISTORY OF PHILOSOPHY OF LAW

Every branch of knowledge is better understood by knowing its history. History of Philosophy is a means of study and research which he lps in t h e a c q u i s i t i o n o f r e g a r d i n g k n o w l e d g e p h i l o s o p h i e s a d v o c a t e d b y different p h i l o s o p h e r s i n t h e p a s t . I t i s a s t u d y o f h o w p h i l o s o p h e r s meditated upon the problems of law and justice. Philosophy in the past has been intermingled with Theology, Morals, and Politics. THE PHILOSOPHY OF ANCIENT GREECE The general history of Legal Philosophy started with the ancient Greek philosophers Socrates, Plato, and Aristotle. In the 15 th century, the Sophists denied the

existence of absolute justice. Law to them is relative. Plato in his Dialogue disputed the Sophists.

Socrates ( 4 6 9 - 3 9 9 B C ) b e l i e v e d i n a h i g h e r j u s t i c e f o r t h e v a l i d i t y of w h i c h i t i s n e c e s s a r y t h a t t h e r e i s a p o s i t i v e s a n c t i o n o r a w r i t t e n formulation. Obedience to the law of the state is a duty. Socrates in this way gave the first indication of the idealistic philosophical system.

Plato ( 4 2 7 - 3 4 7 B C ) , a d i s c i p l e o f S o c r a t e s , i n h i s t w o d i a l o g u e s , The Republic and The Laws, presented the ideal concept of the State as “the m o s t p e r f e c t u n i t ” . T h e S t a t e d o m i n a t e s a l l h u m a n a c t i v i t y a n d m u s t promote good in any form. Justice is achieved through the harmonious relation between the various parts of the State.

Aristotle (384-322 BC), a disciple of Plato, in his Nichomachean Ethics,said that all supreme good is happiness, the product of virtue. The State regulates the lives of the citizens by means of laws. The content of laws is justice as is applied in various ways.

Kinds of justice according to Aristotle: 1.Distributive justice – applied in giving hono rs and respects2.Connective and equalizing or called rectifying justice – applied to voluntary contractual relationship.

THE ANCIENT ROMAN JURISTS The Roman excelled the codification of law but the philosophical basis derived from the Greeks.

Cicero s a i d t h a t l a w i s n o t a p r o d u c t o f c h o i c e b u t i s g i v e n b y n a t u r e . There is eternal law which is an expression of universal reason. Equity and natural law are factors in an ideal law. The contribution of the Romans to jurisprudence is the formulation of codes, putting together in a systematic form the rules and practices.

THE PHILOSOPHY OF THE MEDIEVAL ERA – THE INFLUENCE OFCHRISTIANITY

Christianity as an advocate of liberty, equality, and the unity of the human family through divine law became a challenge to the established political order. The influence of Christianity later became profound upon politics and j u r i s p r u d e n c e . M o d i f y i n g t h e G r e e k and Latin philosophies that the i n d i v i d u a l ‟ s s u p r e m e m i s s i o n i s t o b e a g o o d c i t i z e n o f t h e S t a t e , Christianity said t hat the good goal of the individual is not only on civil life but eternal happiness which can be obtained through submission to the Divine will. The Church asserts itself as an autonomous authority above the State. T h e S t a t e i s c o n c e r n e d o n l y t o e a r t h l y t h i n g s w h i l e t h e C h u r c h , w i t h those that are eternal.

THE RENAISSANCE The Renaissance, a rebirth that started in the 14 th century, came about to overcome the long period of excessive dogmatism. In Renaissance, autonomy and freedom of investigation were awakened. The discovery of t h e N e w W o r l d a n d t h e i n v e n t i o n o f p r i n t i n g p r e s s p e r m i t t e d t h e propagation of n e w i d e a s . T h e R e l i g i o u s R e f o r m a t i o n r e s u l t e d i n t h e withdrawal of religious leaders from the authority of the Church. A c c e p t i n g A r i s t o t l e ‟ s t h e o r y o f b e i n g g o o d i n p o l i t i c a l s o c i e t y , l a w i s something that is presented by reason not by revelation. Natural, moral law world exists even if there is no God.

CHAPTER III HISTORICAL SCHOOL SAVIGNY, OF THE VOCATION OF OUR AGE FORLEGISLATION AND JURISPRUDENCE

ORIGIN OF POSITIVE LAW 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 i n t o o n e w h o l e i s t h e c o m m o n c o n v i c t i o n o f t h e p e o p l e , t h e k i n d r e d consciousness of an inward necessity. For law, as for language, there is no moment of absolute rest; it i s subject to the same movement and development as every other popular tendency; and this very development remains under the same law o f inward necessity, as in its earliest stages. Law grows with growth, and strengthens with the strength of the people, and finally dies away as the nation loses its nationality. With progress of civilization, national tendencies become more and more distinct… law perfects its language, takes a scientific direction, and as f o r m e r l y

it existed in the consciousness of the community, it now devolves u p o n t h e j u r i s t s , w h o t h u s , i n t h i s r e s p e c t , r e p r e s e n t t h e community.

LAWS AND LAW BOOKS Requisites of a really good code: Young 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 frequen tly produce no individual image...

COMMENTS BY PATON ON SAVIGNY In opposition to the pure science of law, the historical school considered law in direct relationship to the life of the community and thus laid the foundation on which the modern sociological school has built. H o w d i d l a w c a m e t o b e ? L a w e v o l v e d , a s d i d l a n g u a g e , b y a s l o w process and, and just as language is a p e c u l i a r p r o d u c t o f a n a t i o n ‟ s genius, so is the law. The source of the law is not the command of the s o v e r e i g n , n o t e v e n t h e h a b i t s o f t h e c o m m u n i t y , b u t t h e i n s t i n c t i v e sense of right possessed by every race. S u c h i s t h e a p p r o a c h o f t h e historical school, and it naturally led to ad is trust of any deliberate a t t e m p t t o r e f o r m t h e l a w . L e g i s l a t i o n c a n 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 o f j u r i s p r u d e n c e i s t h a t l a w c a n n o t b e u n d e r s t o o d w i t h o u t a n appreciation of the social milieu in which it has developed. The slow e v o l u t i o n o f l a w w a s s t r e s s e d a n d i t s i n t i m a t e c o n n e c t i o n w i t h t h e particular characteristics of a people. But in Savigny‟s particular presentation there were exaggerations of which the historical method must be freed if it is to play its true part: 1.Some customs are not based on an instinctive sense of right in the c o m m u n i t y a s a w h o l e b u t o n t h e i n t e r e s t s o f a s t r o n g m i n o r i t y , e.g, slavery. 2.While some rules may develop almost unconsciously, others are the result of conscious effort. Law has been used to plan the future deliberately and not merely to express and order the results of past growth. 3 . T h e c r e a t i v e w o r k o f t h e j u d g e a n d j u r i s t w a s t r e a t e d t o o l i g h t l y . The life of a people may supply the rough material, but the judg e must hew the block and make precise the form of law. 4.Imitation plays a greater part than the historical school would admit.

5. S a v ig n y e nc our ag ed what Po un d has t e r m ed a s “ j u r i s t i c pessimism” - legislation must accord with the instinctive sense of right or it was doomed to failure. Hence conscious law reform was to be discouraged.

CHAPTER IV SEMINAL CONCEPTS (Philosophical Approach)

THE REPUBLIC By Plato

CLASSICAL NATURAL LAW According to Plato, when judgment of society takes the form of a public decision of the state, it has the name law. According to Socrates, public opinion is true opinion, and true opinion is discovery of reality. He 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. L a w m a y n o t a l w a y s a c h i e v e i t s i d e a l o f d i s c o v e r i n g t r u e r e a l i t y , still, Socrates adds, no society believes that that just can really be unjust. W hoever fails to reach reality, fails it find the law. Those who k n o w always accept the same views; they will not write differently at different times on different matters. If we see some persons anywhere doing this, w e c a n s a y t h a t t h e y h a v e n o k n o w l e d g e ; a n d i f t h e y a r e m i s t a k e n i n what they describe as law, then that law is mere appearance and ought n o t b e a c c e p t e d t o b e a s s e r t i n g a d i s t i n c t i o n b e t w e e n p r i n c i p l e s a n d rules. Plato offers another definition of law as the opportionment of reason. Reason is apprehension of reality. So what did Plato mean by reality? Plato once tentatively defined reality as power, by which he meant that a n y t h i n g h a s r e a l e x i s t e n c e i f i t h a s i n h e r e n t i n i t t h e p o w e r o f b e i n g affected or of affecting others, no matter how small. P l a t o a s s e r t e d t h a t l a w w a s t h e d i s c o v e r y o f t r u e r e a l i t y , a p p e a r i n g t o mean that the moral value of law increases as it approximates the ideal law which exists in the world is reality. Plato puts forward the theory that law is an instrument of social control and thus suggests the problem of the end of law. He held that the end of l a w w a s t o p r o d u c e m e n w h o w e r e “ c o m p l e t e l y g o o d ” . H e t h e r e f o r e rejected laws that did not incline to the end, asserting that a bad law is ano law. Was Plato hostile to law?

Plato of the Republic preferred the adaptable i n t e l l i g e n c e o f t h e a l l - w i s e a u t o c r a t t o t h e i m p e r s o n a l i t y o f t h e r u l e o f law. He knew well the simple truth, as the trial of Socrates had shown h i m , t h a t t h e d e b a t i n g m e t h o d o f t h e c o u r t r o o m , a s d i s t i n g u i s h f r o m cross-examination, was perhaps the least likely to lead to the discovery of truth. However, in the Laws and Statesman, P l a t o r e a l i z e d t h a t o n t h i s e a r t h benevolent dictatorship was a counsel of perfection and that he would better propose a solution which had a possibility of realization: society should fall back upon law as second -best. He asserted that fixed laws a r e t o b e p r e f e r r e d t o t h e p e r s o n a l a d m i n i s t r a t i o n o f t h e u n s c i e n t i f i c ruler which is the type society usually receives. F o r P l a t o , t h e r e w a s n o t a m a n among us whose natural equipment enabled him both to see w h a t w a s g o o d f o r m e n a s m e m b e r s o f t h e community, and on seeing it, always to be both able and willing to act for t h e b e s t . A s A c t o n p u t s i t , “ a l l p o w e r c o r r u p t s a n d a b s o l u t e p o w e r corrupts absolutely”. Law the generality of it could not always do justice to particular cases. The State for Plato 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. Both in the individual and in the State, t h e r e m u s t r e i g n t h a t h a r m o n y w h i c h i s o b t a i n e d through virtue. Justice is the virtue par excellence, insofar as it consists in a harmonic relation between the various parts of a whole.

Three parts or faculties exist in the soul of the individual: 1.Reason which dominates 2.Courage which acts 3.sense which obeys

Similarly, in the State three classes are distinguished: 1.The wise to dominate 2.W arriors to depend the social organisms 3.Artisans and farmers who must feed it.

The cause of participation in and submission of the individual to the State is the lack of autarchy, the imperfection of the i n d i v i d u a l , h e ‟ s insufficient by himself. For Plato, it is only the State which is a perfect

being and sufficient unto i t s e l f , a n d w h i c h a b s o r b s a n d d o m i n a t e s a l l . The State, therefore, dominates human activity in all its manifestations. Upon its rest the d u t y t o p r o m o t e g o o d i n i t s e v e r y f o r m . T h e p o w e r o f t h e S t a t e i s limitless. To render stronger and closer knit the political organization, P l a t o s u p p r e s s e s s o c i a l e n t i t i e s w h i c h a r e i n t e r m e d i a t e b e t w e e n t h e individual and the State. By Plato, at any rate, the personality of man isnot adequately recognized. T h e s e b r i e f l y a r e t h e p r i n c i p a l c o n c e p t s f o r m u l a t e d b y P l a t o i n t h e Dialogue, Republic. The Dialogue Laws, composed later, when Plato was seventy, has character different preceding one, because it does not trace o u t a pure ideal, but considers instead historical reality, and there appear often an admirable sense of practical experience. I n t h e D i a l o g u e Laws, P l a t o s h o w s a g r e a t e r r e s p e c t f o r i n d i v i d u a l personality, always, however, that of free men only. Family and property are conserved, no longer sacrificed to the sort of Statism, as in Republic. The authority of the State however remains nevertheless very great and overpowering. Plato criticizes both monar chy and democracy, and proposes a sort of s y n t h e s i s , a m i x e d g o v e r n m e n t . J u s t l i k e i n S p a r t a , a s i d e f r o m t w o kings, there were the Senate and the Ephors.

COMMENTS ON PLATO BY CAIRNS, THE REPUBLIC How much Plato owed to his predecessors? F r o m S o l o n : H a p p i n e s s o f t h e s t a t e d e p e n d e d u p o n t h e f a i t h f u l observance of sound laws, and that it was the duty of the good citizen to see that such laws were made. From Herodutos: Law is the master. From Pindar: Law is the lord of all.

ARISTOTLE’S POLITICS Classical Natural Law In the Platonic Minos, his definitions of law are partial. They are always r e l a t i v e t o t h e p r o b l e m b e f o r e h i m , a n d t h e a s p e c t o f l a w w h i c h t h e y emphasize constantly shifts in order to permit different consequences to be drawn.

In the Rhetoric to Alexander, it is pointed out that in a democracy the final appeal is to reason. A self -governing community is directed along t h e b e s t p a t h b y i t s p u b l i c l a w , a n d s o a s k i n g , a s t h e e m b o d i e d o f reason, guides along the path of their advantage those who are subject to this rule. In a clumsy attempt to bring the two ideas together, law then is defined a s t h e c o m m o n c o n s e n t o f t h e c o m m u n i t y , r e g u l a t i n g a c t i o n o f e v e r y kind. And later, in the same treatise, law is defined as the common agreement of the state enjoining in writing how men are to act in various matters. A r i s t o t l e a g r e e d w i t h P l a t o t h a t

legislation should teach virtue. Goodness, in men, he t h o u g h t , c o u l d b e s e c u r e d i f t h e i r l i v e s w e r e regulated by certain intelligence, and by a right system, inves ted with adequate sanctions. He therefore suggests that, in a general sense, thela itself is a kind of contract, so that whoever disregards or repudiates a contract is repudiating the law itself. Aristotle however said that law was much more than a contract. He pointed out that if the state did not pay attention to virtue, the community became merely an alliance. Aristotle developed a distinction between “constitution” and “laws”: Constitution – the organization of offices in a state, and determines what is to be the governing body, and what is the end of each community. Laws – are the rules according to which the magistrates s h o u l d administer the state, and proceed the offenders. To the extent his works have survived, it is clear that Aristotle did not reach any final definition of law. He saw the inherent complexity of legal phenomena, and he found no single description of it could embrace its manifold aspects. • Aristotle thought of law as a rule of conduct for the individual • Stressed 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 • Presented law as a contract • Distinguished law from constitution i n accordance with which court determine cases • Pointed out law as a form of order. and defined as the rules

Law itself, like everything in the Aristotleian system has its end and to Aristotle it was very clear that its task was to make men good. And to Aristotle, the highest good is happiness or well-being. A r i s t o t l e defined happiness as an e x e r c i s e o f t h e p o w e r s o f l i f e i n accordance with the virtue throughout the whole life -time. Happiness takes its origin in virtue, it issues in pleasure, and material good-fortune is its ordinary equipment. Aristotl e‟s definitions satisfy the Platonic conditions for a happy life, but as a juristic formula it has several defects: • T h e t a s k s o f l a w c a n n o m o r e c a n b e c a u g h t w i t h i n t h e n e t o f 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. Aristotle held that the law has no power to command obedience except of that habit. Education also assists in making obedience to law second nature to the citizens. I n t h e d o c t r i n e o f t h e c a t e g o r i e s , c o n d u c t c o m e s u n d e r t h e h e a d i n g o f Quality. Virtue is a Quality and Aristotle assumes that the category has four divisions: habits, or tendencies to do a thing; capacities for

doing a thing; feelings, passions and emotions prompting us to do a thing; and external form or shape. Habituation is the only method of acquiring that settled tendency to do acts of a certain kind.

THEORY OF LEGISLATION Aristotle‟s normative view of the law is clearly apparent in his theory of legislation. That law prescribes certain conduct: that conduct of a bravem a n ; t h a t o f a t e m p l a t e m a n ; t h a t o f a g e n t l e m a n , a n d s o w i t h a l l t h e other virtues and vices, prescribing some actions and prohibiting others. P l a t o held th at legislation s h o u l d b e s o f r a m e d t h a t i t c o u l d b e incorporated in a manual of instruction for the young. Legislation is a branch of political science.

Law is the highest reason implanted in nature. It is the mind and reason and mind of an intelligent man, the standard by which Justice and Injustice are measured. Reason when perfected is rightly called wisdom. Those creatures who have received the gift of reason from Nature havealso received right reasons, and therefore they have also received the gift of Law, which is right reason applied to command and prohibition. And if they have received Law, they have received Justice also. COMMENTS ON CICERO BY CAIRNS Cicero maintains that nothing can be nobler than the law of the state. Law 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.

KANT’S THE PHILOSOPHY OF LAW PROLEGOMENA LAW AND ETHICS General Introduction to the Metaphysics of Morals Laws of morality are 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. But Reason commands how we ought to act, even although no example of such action were to be found; nor does Reason give any regard to the Advantage which may accrue to us by acting, and which Experience could alone actually show. GENERAL DIVISIONS OF THE METAPHYSICS OF MORAL

GENERAL PRELIMINARY CONCEPTIONS DEFINED Nature and Positive Laws – Obligatory Laws for which an external; Legislation is possible, are called generally External Laws. ThoseExternal Laws, the obligatories of which can be recognized by Reason a priori without an external Legislation, are called Natural Laws. Those Laws, again, which are not obligatory without actual External Legislation, are called Positive Laws.

Maxims – The Principle which makes a certain action a Duty, is a Practical Law. The Rule of the Agent or Actor, which he forms as a Principle for himself on subjective grounds, is called his Maxim. The Categorical Imperative – The Categorical Imperative only expresses generally what constitutes Obligation. It may be rendered by the following formula: “Act according to a Maxim which can be adopted at the same time as a Universal Law”.

INTRODUCTION TO THE SCIENCE OF RIGHT General Definitions and Divisions A. WHAT THE SCIENCE OF RIGHT IS? The Science of Right has for its object the Principles of all t h e L a w s which it is possible to promulgate by external legislation… B. WHAT IS RIGHT? All this may remain entirely hidden even from the practical Jurist until he abandon his empirical principles for a time, and search in the pure R e a s o n f o r t h e s o u r c e s o f s u c h j u d g m e n t s , i n o r d e r t o l a y a r e a l foundation for actual positive Legislation. The conception of Right: 1.External and practical relation of one Person to another, in so far a s they can have influence upon each other, immediately or immediately, by their Actions as facts.

2.The relation of his free action to the freedom of action of the other. 3.In this reciprocal relation of voluntary actions, conception of Right does not take into consideration the matter the act of Will in so far a s t h e e n d w h i c h a n y o n e m a y h a v e i n v i e w i n w i l l i n g i t , i s concerned. Right, therefore, comprehends the whole of the conditions under which t h e v o l u n t a r y actions of any one Person can be harmonized in reality with the voluntary actions of every other Person, according to a universal Law of Freedom.

C. UNIVERSAL PRINCIPLE OF RIGHT “Every Action is right which in itself, or in the maxim on which it proceeds, is such that i t c a n co-exist along with the Freedom of the Will of each and all i n action, according to a universal Law". Or it can be expressed as “Act externally in such manner that the free e x e r c i s e o f t h y W i l l m a y b e a b l e t o c o e x i s t w i t h t h e F r e e d o m o f a l l others, according to universal Law.”

D. RIGHT IS CONJOINED WITH THE TITLE OR AUTHORITY TOCOMPEL Everything that is wrong is a hindrance of the freedom, according to universal Laws; and Compulsion or Constraint of a n y k i n d i s a hindrance or resistance made to Freedom.

COMMENTS BY PATON ON KANT To define law we must distinguish between form and matter. Form is being the complex of universally valid principles presupposed in any legal judgment; Matter i s t h e c h a n g i n g w o r l d o f s o c i a l e x p e r i e n c e w h i c h t h o s e p r i n c i p l e s construe legally. R o d u l f S t a m m l e r r e g a r d s P h i l o s o p h y o f L a w a s t h e “ t h e o r y o f t h o s e propositions about law which have universal validity”. According to Stammler, law belongs to the realm which chooses end and determines Mean; that law is the notion of purpose. It exists to bind together the community. Since by definition law exists to harmonize the purposes of individuals, law itself strives towards justice. The fundamental basis of law and of just law are, therefore, the same. Law exists to coordinate, it can operate only by unifying all possible acts of men.

• Can be seen as a system of rules with a logic of its own capable of more satisfactory elucidation;

• The methods of linguistic analysis pursued by the philosophers canbe employed in jurisprudence to clear up many puzzles which havetroubled legal theorists, and to produce clearer thinking for lawyers generally.

KELSEN’s PURE THEORY OF LAW LAW AND NATURELAW AS A PART OF MORALS What is the relationship of law and morals? This question has t w o meanings: One, what is the relationship between the two? The o t h e r , what ought it be? The first question is sometimes answered by saying that law by its very n a t u r e i s m o r a l , w h i c h m e a n s t h a t t h e b e h a v i o r c o m m a n d e d o r prohibited by legal norms is also commanded or prohibited by the moral n o r m s . F u r t h e r m o r e , t h a t i f a s o c i a l o r d e r c o m m a n d s a b e h a v i o r prohibited by morals or prohibits a behavior commanded by morals, this order is not law, because it is not just. The question 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: just. I f t h e q u e s t i o n o f t h e r e l a t i o n s h i p b e t w e e n t h e l a w a n d m o r a l s i s understood as a question c o n c e r n i n g t h e c o n t e n t o f l a w a n d n o t a s a question concerning its form; if it is said that law according to its nature h a s a m o r a l c o n t e n t o r c o n s t i t u t e s a m o r a l v a l u e ; t h e n o n e a s s e r t s b y 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 just.

RELATIVITY OF MORAL VALUE But if an absolute value in general and an absolute moral value in particular is rejected from the point of view of scientific c o g n i t i o n , because an absolute value can be assumed only on the basis of religious faith in the absolute and transcendent authority of a deity; if one grants that under different circumstances different behavior may be considered g o o d o r e v i l , j u s t o r unjust, and nothing has to be considered good or evil, just or unjust, u n d e r a l l p o s s i b l e c i r c u m s t a n c e s ; i f i n s h o r t , o n e acknowledges that moral values are only relative: then, the assertion that social norms must have a moral content, must be just in order to q u a l i f y a s a l a w , c a n o n l y m e a n t h a t t h e s e n o r m s m u s t c o n t a i n something common to all possible moral systems, as systems of justice. In view of extraordinary heterogeneity, however, no element common to the contents of the various moral orders is detectable. All moral orders have only one thing in common: that they are social norms, that is norms, norms that order a certain behavior of m e n – directly or indirectly – toward other men. All possible moral

s y s t e m s have in common their form, the “ought”: they prescribe something, they have normative character. Morally good is that which conforms with the social norm that prescribes a certain human behavior; 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. Under these presuppositions the statement “law is moral by nature” does not mean that law has a certain content, but that it is norm – namely asocial norm that men ought to behave in a certain way. Then, in these r e l a t i v e s e n s e , every law is moral: every law constitutes a – relative – m o r a l v a l u e . A n d t h i s m e a n s : T h e q u e s t i o n a b o u t t h e r e l a t i o n s h i p between law and morals is not a question about the content of the law, but one about its form. T h e l a w c o n s t i t u t e s a v a l u e p r e c i s e l y b y t h e f a c t t h a t i t i s a n o r m ; it c o n s t i t u t e s t h e l e g a l v a l u e , w h i c h i s a ( r e l a t i v e ) m o r a l v a l u e ; w h i c h merely means that the law is a norm.

SEPARATION OF LEGAL AND MORAL ORDERS If it is assumed that law is moral by nature, then, presupposing a n absolute moral value, it is meaningless to demand that the law ought to be moral. Such 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 emphasized enough to understand that not only one moral order exists, but many different and even conflicting ones; and that above all, the judgement of what is morally good or evil, morally justifiable or unjustifiable, is subject to continuous change, as is the law, and that a legal order that at the time of its validity may have c o n f o r m e d w i t h t h e p o s t u l a t e s o f t h e m o r a l o r d e r t h e n p r e v a l e n t , m a y still be judged to be immoral today. The thesis rejected by Pure Theory of Law: • 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. Otherwise 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 justification of the national coercive order that c onstitutes this community. The d u b i o u s s t a n d a r d o f a n a b s o l u t e m o r a l i t y i s a p p l i e d o n l y t o t h e coercive order of other nations. From the point of view of science of l a w i t m u s t b e r e j e c t e d b e c a u s e it is not the task of this science to j u s t i f y t h e l a w b y a b s o l u t e o r r e l a t i v e m o r a l s ; b u t t o k n o w a n d describe it.

COMMENTS BY PATON ON THE PURE SCIENCE OF LAW Kelsen wishes to free the law from the metaphysical mist with which it h a s b e e n c o v e r e d a t a l l t i m e s b y t h e s p e c u l a t i o n s o n j u s t i c e o r b y t h e doctrine of i u s n a t u r a e . H e d e s i r e s t o c r e a t e a p u r e s c i e n c e o f l a w , stripped of all irrelevant material, and to separate jurisprudence from the social sciences as rigorously as did as the analysts. So the jurists, if he is to be scientific, must study the legal rules abstracted from all social c o n d i t i o n s . K e l s e n r e f u s e s t o d e f i n e l a w a s a c o m m a n d , f o r t h a t introduces subjective and p o l i t i c a l c o n s i d e r a t i o n s a n d h e w i s h e s h i s science to be truly objective. Kelsen wishes to separate the realm of jurisprudence from the natural sciences. The latter deals with cause and effect. Law 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. For Kelsen, we cannot adopt the easy method of defining law: • The modern tendency to regulate so many of the affairs of the private citizen means that the sphere of law is daily increasing. • Justice is not a satisfactory concept for a science of pure law, as „justice is irrational ideal‟ – that is, it cannot be clearly defined by reason. Justice for many rules may be unjust, but they do not therefore cease to be law. The law does not state what actually does happen, but lays down what ought to happen; yet if the legal order is to be effective, it must se cure a certain measure of acceptance. T h e s p h e r e o f j u r i s p r u d e n c e , t h e n , i s a s t u d y o f t h e n a t u r e o f t h i s hierarchy of norms, validity of each norm depending on i t s b e i n g l a i d down in accordance with a superior norm until we reach the final norm which imposes an obligation on a particular individual. I t i s d i f f i c u l t t o a p p r e c i a t e t h e s i g n i f i c a n c e o f K e l s e n ‟ s w o r k u n t i l t h e 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 jurisprudence. His claim that he has created an impartial and universal science is justified, but we are not left with the dry bones of the law deprived of the flesh and blood which give them life. Kelsen is not alone in his disgust at „politics masquerading as jurisprudence‟. K e l s e n i s c o r r e c t i n s h o w i n g t h a t l a w i s a w e a p o n t h a t m a y b e u s e d t o affect many end. K e l s e n ‟ s w o r k i s a l s o v a l u a b l e i n i t s e m p h a s i s t h a t i n e x e c u t i n g t h e norms of law t h e j u d g e h a s m u c h d i s c r e t i o n – i t i s i m p o s s i b l e f o r a n y general rule to provide for all contingencies, and the general rules must be made precise by those who have the duty of applying them. But, in order to maintain the air of impartiality, Kelsen regards as outside the s c o p e o f j u r i s p r u d e n c e a l l d i s c u s s i o n o f n a t u r a l l a w , a n d a l l t h e examination of the sources whence the judge draws his rules when there is no authority in point. This leaves the science of law very „pure‟, but deprives it of all interesting contact with life itself. To exclude the whole of sociology and of ethics leaves jurisprudence but a mental

exercise in abstract notions. K e l s e n ‟ s m e t h o d s d o n o t e v e n g i v e u s a t r u e p i c t u r e o f l a w , f o r jurisprudence must go beyond the formal hierarchy of norms to study t h e s o c i a l f o r c e s t h a t c r e a t e l a w . T h e d o c t r i n e o f n a t u r a l l a w h a s certainly been abused, but is jurisprudence therefore to ignore the whole question of ethics? The pure science of law is narrow one, and it must be complemented by other and broader approaches.

6 . M a k e e f f o r t m o r e e f f e c t i v e i n a c h i e v i n g t h e p u r p o s e o f l a w . Comparing sociological jurists with insists of the other schools we may say: 1. They look more to the working of the law than to its abstract content; 2. They regard law as a social institution which may be improved by intelligent human effort; 3. They lay stress upon the social purposes which law subserves rather than upon sanction; 4. They urge that legal precepts are to be regarded as guides to result which are socially just and less as inflexible molds; and5 . T h e i r p h i l o s o p h i c a l v i e w s a r e v e r y d i v e r s e .

COMMENTS BY 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. • What attitude should jurisprudence take to the question of the values that direct the development of law? Kelsen would retain the scientific method. But Pound considers that they must be analyzed thoroughly in order to understand legal development. For Pound, law is also a process of balancing conflicting interests and securing the satisfaction of the maximum of wants with the minimum of friction.

CHAPTER VIITHE REALIST SCHOOL THE PATH OF THE LAW By Oliver Wendel Holmes When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, 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. A 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 judgment 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 consequence which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct. Nowhere 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.

COMMENTS ON THE REALIST SCHOOL BY PATON The realists defined law not as a set of logical propositions but in terms of official action. Until a court has passed on certain facts, some realists argued, there is no law in the subject yet in existence, for the opinion of lawyers is only a guess as to what the courts will decide. Since 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 judge in reaching the decision is a fit subject for jurisprudence. Law can have a little weight in legal evolution. Society is always changing, moral judgments are developing, and the law therefore is in a state of flux. Realists insisted that to know what a thing is one must see what it does; that rules of law must be assessed by reference to their consequences. Perhaps the most immediate and most important influence of American 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.

COMMENTS BY JEROME FRANK, WHAT COURTS DO IN FACT How then a judge arrive at his decision? He does so by a “hunch” as to what is fair and just or wise or expedient. According to Frank: 1. Specific enforceable decisions in concrete cases are of the essence of the lawyer‟s work; 2. Specific decisions are the result of the judges‟ hunches; 3. To predict or bring about decisions, one should know about what produces judicial hunches; 4. The so-called legal rules and principles are some of many hunch producers; 5. Whatever may be the stimuli to the making of those hunches, may loosely describe the judge‟s personality; 6. Neither the background stimuli nor the congeries label ed “judge‟s personality” are stated or stable in terms of the conventional legal rules and principles;

7.The failure to recognize 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.” 8. The formalist errs also in overlooking that circumstance that it is impossible to predict what cases will be “contested” and the subjective nature of the “facts” of a “contested” case and the resulting unchangeability of the judge‟s statement of those “facts.” 9. The formalist conveniently neglects the jury.

CHAPTER VIII THE COMMUNIST THEORY

KARL MARX Marx‟s ideas, particularly the prospect of inevitable liberation of the working classes from bondage and oppression through r e v o l u t i o n a r y action made a strong impression on Russian radicals.

LENIN ON MARX Marx‟s teaching is complete and harmonious, providing men w i t h a consistent view of the universe, which we cannot be reconciled with any superstition, any defense of bourgeois oppression. The three components of Marxism are: 1. The philosophy of Marxism is materialism. Provided the humanity, and especially the o f knowledge. working class, with a powerful instrument

2. Marx devoted all the greater attention to the study of economic order, having recognized that it is the foundation upon which the political s u p e r s t r u c t u r e i s e r e c t e d , i . e . c a p i t a l i s t s o c i e t y . T h e d o c t r i n e o f surplus value is the cornerstone of the economic theory of Marx. 3. A f t e r t h e o v e r t h r o w o f s e r f d o m , f r e e d o m s i g n i f i e d a n e w s y s t e m o f oppression and exploitation of toilers. Marx answered this with the d o c t r i n e o f t h e class struggle t o e n l i g h t e n a n d o r g a n i z e f o r t h e s t r u g g l e , f r o m t h e p o w e r c a p a b l e o f s w e e p i n g a w a y t h e o l d a n d establishing the new.

CHAPTER IX THE POLICY SCIENCE SCHOOL LEGAL EDUCATIONAND PROFESSIONAL TRAINING INTHE PUBLIC INTEREST By Harold D. Lasswell andMyres S. Mcdougal PUBLIC POLICY:

The reform of legal education must become more ever more urgent in a revolutionary world of cumulative crises and increasing violence. Adequate training must therefore include experiences that aide the developing lawyer to acquire certain skills of thought: 1. Goal thinking – to promote the major value of democratic society and t o r e d u c e the number of moral maverick s who do not share democratic preferences; 2. Trend-thinking – this considers the shape of things to come orient himself correctly in contemporary trends and future probabilities. 3. Scientific-thinking – to build up scientific knowledge.

COMMENTS BY CRISOLITO PASCUAL ON THE POLICY SCIENCE OF S C H O O L O F J U R I S P R U D E N C E A N D I T S T H E O R Y O F T H E N A T U R E OF LAW The goal of the law is the creation of a world community conceived in mutual respect, understanding and rectitude, where the d i f f e r e n t representative social values or desirable objects of human d e s i r e s a r e widely and equitably shared. The law becomes meaningful only when considered as the vehicle or machinery to realize the end in view. CHAPTER X NATURAL LAW ST. THOMAS AQUINAS, THE SUMMA THEOLOGICA Law is a rule and measure of acts, whereby man is induced to act or is restrained from acting. T h e r u l e a n d m e a s u r e o f h u m a n a c t s i s t h e r e a s o n . R e a s o n h a s i t s power of moving from the will. Every 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. Justice has its source in nature; thence certain things came into custom by reason of their utility; afterwards these things which emanated from nature and were approved by custom, were sanctioned by fear a n d reverence for the law. I n t e m p o r a l l a w t h e r e i s n o t h i n g j u s t a n d l a w f u l , b u t w h a t m a n h a s drawn from the eternal law. F i r s t p r e c e p t o f l a w :

“ G o o d i s t o b e d o n e a n d e n s u e d , a n d e v i l i s t o b e avoided.”A n y p o i n t d e f l e c t i n g f r o m t h e l a w o f n a t u r e , i t i s n o l o n g e r a l a w b u t a perversion of law.

COMMENTS BY JACQUES MARITAIN ON ST. THOMAS AQUINAS St. Thomas succeeded in constructing a philosophical and theological w i s d o m so elevated in immateriality that it is really free of e v e r y particularization of race or environment. His metaphysical principles were based upon objective reality.

FOR A REVIVAL OF NATURAL LAW DOCTRINE IN PHILIPPINE JURISPRUDENCE By Jorge R. Coquia There has been a sudden increase of law schools, but a meager few have e v e r a t t e m p t e d s e r i o u s l y w h a t l e g a l p h i l o s o p h y t h e y s h o u l d s t r e s s t o students. One 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 th at in each attempt to enunciate a new philosophy of law, human experience has led to insoluble difficulties and to inescapable inadequacies. 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.”

Sign up to vote on this title
UsefulNot useful