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“The highest perfection of society is found in the union of order and anarchy.”

In asking whether or not law is necessary at all, other questions arise:
x Is law unnecessary to the creation of a just society?
x Is law evil in itself and therefore an impediment to the fulfillment of man’s
social nature?
x In answering the aforementioned questions, it would seem that from the
viewpoint of a less-regulated and properly ordered society → law is
x As a guide in this chapter, we must keep in mind the considerations of the
philosophers in answering “Is law necessary?” → Do they reject law
altogether or regard it as a necessary evil?

The Nature of Man → Is man good or evil?
x This concept is “ideological, (meaning: forming part of our outlook upon the
world) ” it is how we view the world, man, and society and its manifestations
o Our view of law will be coloured by our general thinking about man’s
place in the world, etc.
x When we assert that law is necessary or unnecessary to man, we must
look at man’s nature
x When does man attain a truly human condition →is it in the existence or in
the non-existence of law?

Nature of Man

View of Law

Man either the incarnation of evil or at best an amalgam of good and
bad impulses constantly in conflict with the bad tending repeatedly
to prevail over the good

Law is necessary as it is an indispensable restraint upon the forces of

Man’s nature as inherently good

Law in unnecessary. The ills of man’s present condition are external and
these defects can be attributed to man’s social environment.

The Law and Forces of Evil (2 Main Views)
Man’s nature is intrinsically evil and that no social
progress can be attained without the restraints of penal

Man is originally created good by nature BUT because of sin,
corruption, or some other internal weakness, man’s original
and true nature became distorted and thus, there is now a need
for its control → the rigors of a punitive system of law

Golden Age → Primeval innocence when men lived simple,
happy and well-ordered lives without the need for any external
system of legal rules or coercion
→ roseate view of man’s remote past = pattern for a movement
towards a return to nature
→ return to man’s primitive, unspoiled nature

IS MAN GOOD? Fr. Ferrer proposes this table where we can plot the views of the different philosophers.



RONQUILLO _________________________


Good or Bad?

Man is a moral savage.
Roseate view → there is a pattern for movement towards the return to man’s primitive, unspoiled nature.





Man’s nature was initially evil. Men often acted in good ways due to the influence of social environment, particularly the teaching of
rituals and the restrains of penal laws.
“A single law, enforced by severe penalties, is worth more for the maintenance of order than al the words of all the sages.”





Men are by nature are passionate and covetous and that if left to themselves the world would resemble a “ devil’s workshop,” where the
“logic of fish” would reign → big ones would eat the little ones



The original state of man was one of disorder, force and violence.



The life of a primitive man as a state of perpetual welfare, where individual existence is “brutish, nasty, and short”



Without law, government and coercion, human society could not exist and so in this sense, law is a natural necessity for man.



“Men are naturally bad and will not observe their faith towards you, so you must, in the same way, not observe yours to them.”





Poem in Metamorphoses
“The Golden Age was first; when Man yet new,
No rule but uncorrupted reason knew;
And with a native bent, did God pursue.
Unforc’d by punishment, unaw’d by fear,
His words were simple, and his soul sincere:
Needless was written Law, where none opprest;
The Law of Man was written in his breast;
No suppliant crowds before the Judge appeared:
No Court erected yet, nor cause was hear’d;;
But all was safe, for Conscience was their guard.”
Prose: “In this primitive state men lived together in peace and happiness having all things in common; there was no private property. We
may infer that there could have been no slavery, and there was no coercive government. Order there was of the best kind for men
followed nature without fail and the best and wisest men were their rulers. They directed and guided men for their good, and were gladly
obeyed as they commanded wisely and justly… As time passed the primitive innocence disappeared; men became avaricious and



RONQUILLO _________________________

dissatisfied with the common enjoyment of the good things of the world, and desired to hold them in their private possession. Avarice
rent the first happy society asunder… the kingship of the wise gave place to tyranny, so that men had to create laws which should control
their rulers.”
Primitive innocence is the result of ignorance than of virtue.
Social evils and the necessity for the introduction of a regime of law are attributed to the corruption of human nature from its initial state of
innocence, especially due to the vice of avarice.
Church Fathers and

Biblical account of paradise (Garden of Eden) is equated with Seneca’s primitive state of innocence.
The necessity for human law, such as the coercive state, private property and slavery, are derived from man’s sinful nature, which resulted
from the Fall of man.
Law was a natural necessity after the Fall to mitigate the evil effects of sin.
Consequences of the fall of man Æ Family represented the coercive domination of the male; slavery

Christian Fathers

State law and coercion are NOT in themselves sinful but are part of the divine order as a means of restraining human vices due to
All established legal institutions and the state powers are legitimate and coercion can properly be used to enforce them.
Law is a natural necessity to curb man’s sinful nature.
Future hope for mankind Æ attainment of a commonwealth of God’s elect, a mystical society, which would replace existing regime
dominated by man’s sinful nature


Man as a rational animal Æ social animal who wants to live in society not as a hermit.


Man is therefore good compared to the animals and he wants to associate with other people to attain his potentials.

Christian Fathers

Followed Aristotle’s conception of the natural development of the state from man’s social impulses.
The state is a not necessary evil but a natural foundation in the development of human welfare.
Law as a positive instrument – not merely for restraining the evil impulses of man but also for setting him upon the path of social harmony
and welfare.



Is Man Naturally Good? The Anarchist’s Viewpoint

● Approach to regard law as a natural necessity directed to restrain the evil instincts of man
● View of law as a way of rationalizing and directing the social side of man’s nature
A mood of wistful primitivism, a nostalgia for a primeval Golden age


Man is GOOD; “The men of early times were better than we are and nearer to the gods”


Society – not to be one with an ideally conceived regime but one the is free from all legal rules in which rational harmony will prevail as a result of good
Wrote Republic → an idealist picture of a state WITHOUT law; had faith upon a system of education which will produce rulers who will serve (philosopher kings)
Wrote The Laws → totalitarianism, inflexible and rigorously enforced legal system;; Concept of justice: everyone and everything is its proper place doing its proper

Adam Smith

Laissez-faire → the less government, the better (leave everything to the forces of the market, things will fall into place as if they're governed by an invisible
Man is GOOD, let free market function
However, coercive law is needed for the protection of property.

Godwin Day

Man is GOOD.
Wrote Political Justice → Evils of society arose not from man’s corrupt of sinful nature but from the detrimental effects of oppressive human institutions; man is
inherently capable of unlimited progress.
● Voluntary cooperation and education would abolish law → No need for Arcos (superior)
Laws create psychological impact so people rebel
Law is not necessary → moral norms and social norms only → Man only needs customs

Bakunin and
Kropotkin Day

Man is GOOD
Expounded the views of Godwin → State, law, coercion and private property are enemies of human happiness and welfare


Man is GOOD

Mutual aid would inevitably replace the coercive system

Anarchy based on simple Christian God-inspired life: why is there union of hearts and minds among the first Christians?
→ They believed he world is going to end soon. Might as well sell property and help others




2 examples why his concept of the Christian God-inspired life won’t work:
● In a commune with common ownership and no violence, a boy stole a waistcoat from a another
○ When boy stole, there is now private property - An act is now considered wrongful
○ But what is the remedy of the commune if violence is not allowed?
● A property of colony was bought by a member for the use of his fellow members. This person sold the property of the colony to an eccentric fellow
without the knowledge of his fellow members
● Eccentric fellow declared that there it is his property
○ How can the members resist the eviction if violence is not allowed?
Maude: “Remove the law and induce men to believe that no fixed code or seat of judgment should exist.”

Overthrow of capitalist society by a violent revolution of the oppressed proletariat → law only safeguards capitalism
Looks forward (rather than backward to a golden age) /classless society unimpeded by environmental snares such as private property
From Capitalist state to Socialist state
Capital good cannot be owned. Only personal property allowed e.g. toothbrush

Innate Goodness and the Price of Civilization
Elliot Smith
Modern Day Anarchists

Man is GOOD
Book: Human History
● "The Innate goodness and peacefulness of mankind"
● The discord of our lives are the result of conflicts created by society itself (envy, malice, and all uncharitableness
usually have for the object of their expression some artificial aim, from the pursuit of which Primitive Man is exempt.)
Mary Shelley’s Frankenstein: creates a monster, though possessed with human feelings, eventually turns upon and slays its
creator → duality of human nature where many may possess innate tendencies towards goodness, but there is a dynamic side
to human nature which may be directed to either creative or destructive ends

Herbert Read
Modern Day Anarchists

Human groups have always associated themselves into groups for mutual aid → Society as balance and harmony of groups
He explains “arkhos” – society without a ruler (not necessarily without law and without order)
Anarchist accepts the social contract but interprets the contract in a particular way
Only fundamental laws are needed. – The rest may be decided by local customs.
Densely populated areas have inhuman regulations.



Then when we make one big mistake: growing up. ● Self-defense is instinctual but aggressiveness is also instinctual ● If aggressiveness is eliminated.parental authority. there can be no organized society. hunting ● Acts inimical to welfare of society CHAPTER 2: LAW AND FORCE ● Ancient Mesopotamia → two gods specially revered ○ Anu – sky god who issued decrees which commanded obedience by the very fact of having emanated from supreme divinity ■ Symbol of authority ○ Enlil – storm god. policeman. SJ) . while interconnected. the power of compulsion. the judge (superior party) → all have a peculiar aura or mystique which arouses a response from the other party (inferior party) Response → superior party can legitimately give orders which inferior party must obey ■ This is called LEGITIMATE SUBORDINATION MORAL OBLIGATION → inferior party feels he is under a moral duty to obey the commands of the superior party ○ ● There is a connexion between the idea of legitimate authority (which has to be obeyed because of its very legitimacy) and moral obligation (which imposes a rule which calls for voluntary adherence by virtue of its intrinsic rightness) ● HOWEVER. Such aggressiveness need to be controlled by law/coercion/force Men are friendly creatures who simply defend themselves when provoked. it is necessary to have rules to make men and women live together: ● Rules governing family relationships . the gathering. Until we reach that "devil" state. we are considered as "angels. are nonetheless separable and distinguishable ○ Emphasis of this section → the notion of legitimate authority derives much of its strength from its link with moral obligation Without authority (and decrees which determine order in the world).THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO _________________________ANGSIY BUENDIA BULLO CHATTO DE GUIA FONACIER GARCIA GUERRERO KHO LAUENGCO MARCELO MASIGLAT OAMINAL RETIRADO RONQUILLO _________________________ Freud The explanation of coercion as an element of human law lies at a deeper level → Psychoanalysis (unconscious factor in man's Modern Day Anarchists psychological make-up) ● ● Social cooperation Gregariousness .but this cannot be realized realistically Is Law Necessary? Our Own Life Story ● When we were is a political animal But aggressive that must be repressed to be able to live with fellow men. or judge) and morality. and therefore authority makes possible the functioning of the universe as a social whole Without force to ensure obedience to the decrees. the god of coercions.economic . lawful authority (as in the case of the lord. We "rule" our parents. support ● Conditions . who punished disobedient gods or mortals ● This reveals the human need for order and the belief that such order demands the combination of two (2) essential elements → authority and coercion ○ ○ Authority and Moral Obligation asdadasd Some person is entitled to require the obedience of others regardless of whether such others are prepared to find the order/rule imposed upon them as acceptable/desirable or not ● The lord. the universe can never attain the role of statehood PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER.” We do no wrong. Everything we do is cute and funny. Therefore there is now a need to "regulate" us. Minimum requirement In any society (primitive or complex). we reach that Golden Age .

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THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO _________________________ANGSIY BUENDIA BULLO CHATTO DE GUIA FONACIER GARCIA GUERRERO KHO LAUENGCO MARCELO MASIGLAT OAMINAL RETIRADO RONQUILLO _________________________ 3 Forms of Authority ● German sociologist Max Weber described authority or legitimate domination (as Weber called it) taking three (3) forms Greek word “charisma” meaning grace” ascendancy → an individual may acquire in a society. the automatic and impersonal operation of legal authority would cease to function and would be replaced by anarchy and disorder Such belief is not really logical as it involves a circular argument o laws are legitimate if they are enacted o an enactment is legitimate if it conforms to rules which prescribe the procedures to be followed ƒ Such circularity is intentional in order to allow for a belief in legitimacy divorced from any particular ideals or value judgments KEY TAKEAWAY RE: BELIEFS: human society rests on beliefs which may be rational or irrational but which need to be understood clearly in their functioning ● Weber’s three (3) forms → “ideal types” representing the full development of possibilities inherent in certain kinds of social organizations PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER. rules may be regarded as legal depending on will of charismatic leader o Traditional system of domination may have legal rules which might be customary rather than legislative Emphasis of Weber → under this system. descendants of the charismatic founder of the dynasty derive their legitimate authority from their descent. conferring upon said individual an indisputable aura of Charismatic Personal legitimacy over all his acts - Ex. such authority derived in the first instance from the personality of the leader may pass to his successors Traditional Institutionalizing the original charisma Ex. Stalin A hypnotic effect exerted by such individuals not only over immediate followers but also on whole nations Charisma attaches to the person alone but as Weber says. even though they (descendants) lack all/most of the qualities of their charismatic ancestor Ex. established monrachy in a feudal order of society → while rule remains personal (vested in the king). disciplines of founders of religions are able to retain and even enlarge the scope of the authority of the founders who originally possessed the charismatic quality Ex. SJ) 7 . the institutional character of the kingship creates traditional customs which are regarded as binding. Hitler. Mussolini. Alexander the Great. bureaucracy. thus restricting the freedom of action of the king A complex of personal and institutional elements Misconception → legal domination can only exist under institutional type of a uthority o Even under purely charismatic type of authority. Julius Caesar. Napoleon. and judiciary which operate impersonally under a legal order to which is attached a monopoly of Legal Domination the use of force Legal domination dispensed with personal charisma BUT still rests on a belief in its legitimacy - - Without such belief. legitimate domination has become impersonal and legalistic Institutional character of authority has displaced the personal one Modern democratic state has abandoned charismatic authority in favor of an institutionalized legislature.

the fact that in exceptional periods of war or revolution. not in any way essential to the existence of law Force in International Law ● In modern times. It is a Utopia … [which] has the significance of a purely limiting concept with which the real situation or action is compared. the rule of morality This type of argument is directed to establishing a relationship between law and morality and therefore the question of the role of force in a legal system becomes a subsidiary issue (this discussion is reserved for Chapter 3: Law and Morals) People obey the law not because they are constrained to do so by force but because they consent or acquiesce in its operation . German Nazi state which combined features of personal charisma and features of modern bureaucracy which are associated with legal domination Legal theorists needs a conceptual apparatus which will provide him with a limiting scheme ■ Weber’s “ideal types” → no more than a “unified analytical construct … [which] cannot be found empirically anywhere in reality.No system of rules may qualify as law unless it coincides with. Nazi occupation in many European countries during World War II → Nazis possessed the power to enforce their will on the population even when the occupied peoples entirely rejected the legitimacy of the domination of their Nazi oppressors ■ Rules enforced under the Nazi occupation were not laws but equivalent to rules imposed by gangsters or terrorist organizations such as the Mafia in Sicily Does this imply that law can be explained in terms of force alone. the gaoler (prison guard).THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO _________________________ANGSIY BUENDIA BULLO CHATTO DE GUIA FONACIER GARCIA GUERRERO KHO LAUENGCO MARCELO MASIGLAT OAMINAL RETIRADO RONQUILLO _________________________ Simplifications which provide an analytical structure within which sociological research may be conducted. a system of rules has developed PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER. in its legitimacy ○ Ex.In democratic societies. it has been replaced by the idea that universal suffrage and majority rule is the means by which an individual can manifest his adhesion to the operative system of government Law exists in its own right regardless of whether force can or cannot be brought to bear upon offenders against its rules Existence of legal coercion is relegated to a mere matter of incidental procedure. analysis is typological ■ Ex. the bailiff.It is this consent rather than any threat of force which causes the legal system to work BUT such consent is a legal fiction and in the present day. on the part of the subjects. SJ) 8 . or can be subsumed under. in the last resort? ○ Thrasymachus arguing in Plato’s Republic that justice is simply “the rule of the stronger” ○ NO. a society can temporarily be dominated by sheer force or terror is NOT a reason for treating law as nothing but force Situations where force of law is linked with rules which are capable of being enforced by coercion → the hangman.” ○ ○ Force ● ● ● Societies where fully effective “domination” occurs but WITHOUT any belief. the policema n COERCIONISTS Put force at the forefront of the description of the legal process to the neglect of authority Describe the legal process exclusively in terms of authority to the neglect of force Argument against coercive character of law → any force or violence is wrong in itself and that law which rests ultimately on violence must therefore offend the principles of true MORALITY Force is the very negation or breakdown of law Recourse to violence lies outside the law itself MORALISTS ANTI-COERCIONISTS Proponents of this viewpoint → only law which they recognize is moral law and that moral law eschews all coercion and appeals only to the conscience of humanity . such the fiction of a social contract has been abandoned SOCIAL CONTRACT .

” ● Freud: “Men are NOT gentle.. that it would not always be so Rules About Force ● Primitive order → rules regulating a blood-feud ● International order → provisions empowering some body such as the United Nations to rai se an international force ad hoc to try and control a situation which involves a threat to peace(ex. and adjudicated upon PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER. friendly creatures … who simply defend themselves if they are attacked … . it is possible to reply that it need not be so.” ● Bottom line of Freud → necessary connexion between civilized society and coercive social order ● Recent history has emphasized the existence and the power of those aggressive urges as well as the fundamental frustrations which beset our civilization that Freud’s diagnosis cannot be brushed aside ● HOWEVER human nature may change and a new. task of legal science is to accommodate re-formulations ● Continually reassessing the forms of coercion and the role that coercive processes play in legal relations ● THUS modern legal theory calls for a DYNAMIC rather than a static approach Can We Dispense with Force? ● Role of coercion in human law lies at a deeper level ○ Unconscious factors in man’s psychological make-up → pscyhoanalysis ■ Powerful aggressive drives which require to be effectively repressed in order to subject man to the needs of social discipline ● Freud believed that these aggressive urges could be repressed and sublimated but NOT eliminated so that civilization would always involve a struggle between the social impulses and basic drives towards aggression ○ Referring to the possibility of eliminating aggression altogether. death penalty) represent the final stage of a long procedural process whereby proceedings are instituted. That would be the Golden Age. process may be evolved gradually although evolution may be long and difficult and not always in one direction ■ As such.a powerful measure of desire for aggression has to be reckoned with as part of their instinctual endowment. officials. Beirut.THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO _________________________ANGSIY BUENDIA BULLO CHATTO DE GUIA FONACIER GARCIA GUERRERO KHO LAUENGCO MARCELO MASIGLAT OAMINAL RETIRADO RONQUILLO _________________________ ● ○ All civilized countries acknowledge to be binding upon them ○ Not enforceable by coercion since there are no regular international forces empowered to perform the role of the policeman and bailiff ○ Despite absence of any regular system of international coercion. bailiffs. imprisonment. Freud said. regulated. rules are nevertheless treated as a system of international LAW Coercion between nations can never be identical with the pattern which emerges in state law where coercion is applied to individuals ■ Nature of problem is different where whole nations have to be coerced into conformity ● Use of force may entail destruction of life and property on a vast scale ○ National law → can always resort to coercion to enforce decrees against individuals ■ In international law. policemen. etc. the use of force has been pushed further into the background ○ The bureaucratized state tends to resemble the order from which it theoretically differs the most (the charismatic personal rule) where the element of authority overshadows the need for force ■ Leading to the view that force never was or at least has ceased to be an essential feature of law → FATAL ILLUSION ● One essential condition for reducing the application of violence is that there is an organized force of overwhelming strength in comparison to that of any possible opponents ● Developed legal system → designated rules about the use of force may be properly broadened to cover all the procedural appara tus of the law ○ Rules which govern the use of violence in the state (ex. but it is questionable if such a state of affairs can ever be realized. It seems more probable that every culture must be built up on coercion and instinctual renunciation. more harmonious social order may eventually prove practicable ○ So that even if de Maistre were right and the structure of civil society had always been founded on the hangman. Middle East) ● Highly developed state system → regulated apparatus of courts. ● As the use of force became more closely regulated. SJ) 9 .

semi-divine. Divine Furies appear and pursue Orestes for murder but are stopped by the intervention of Athene Shows the flexibility of the administration of divine justice ƒ Polytheism means that many gods may intervene and mitigate the administration of justice Hebrews Æ monotheists. England when Home Secretary orders an illegal immigrant to be detained and deported Command theory of law as expounded by John Austin ○ Though coercion may be an indispensable part of an effective system of law.THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO _________________________ANGSIY BUENDIA BULLO CHATTO DE GUIA FONACIER GARCIA GUERRERO KHO LAUENGCO MARCELO MASIGLAT OAMINAL RETIRADO RONQUILLO _________________________ ■ ■ ● Final stage → hardly ever reached Procedures → not necessarily judicial or purely judicial ● Ex. distinction was not readily apparent. BUT because even if a lawbreaker had escaped the vigilance of man. Athenian asks a Cretan who the credit should go to for instituting laws. the punishment of a god would be imposed in its own way. Law and Religion Hebrew and Greek Influences Modern times = secular concept of law made for man by man to be judged by man x Disobedience = divine punishment Prophets reiterated imperative character of God’s law. or heroic x Ancient Greek approach: passage from Plato’s Laws. relationship between members and rulers. indubitable to a god. because the pharaoh is viewed as the incarnation of God on earth. Ten Commandments) x Lawmakers viewed as mythical. and the universe) and laws that were man-made in character (lacking cosmic significance) o PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER. SJ) 10 Scripture Æ full of doubts and obscure language which mean it would have to be interpreted by people before it could be treated as legislature → infinite number of interpretations Resulted in either ƒ rigid orthodoxy (Geneva of Calvin) ƒ virtual anarchy (individuals each interpreting the law according to his own moral inspiration). latter being more frequent . and in its own time o Story of Orestes Æ man avenged his murdered father by killing his o mother and her lover. when the gods themselves would impose divine punishment on lawbreakers? x NOT because the punishment of man was insufficient (dismemberment and torture). therefore they enjoyed divine sanctity. Every decree had divine authority x But for the most part society did NOT identify their rulers with the gods CHAPTER 3: LAW AND MORALS o There was a clear cut distinction between the divine and the human. so they could impose laws upon the people BUT in case of conflict. Law. and religion were interrelated (ex. morality. man or god? Cretan replies “Why to a god. there seems to be NO reason why penal consequences should be annexed to every individual rule comprised in a legal system x In Egypt.” Law is rooted in religion because of this notion of “divine sanction” Æ Why would people be impressed by the views of a modern jurist like Austin in that breaking the law would provide for certain punishments performed by mere humans. o Recognized kings as lawfully anointed by God. laws of a king do not prevail over the will of a God x Rejected human law as the embodiment of morality and equated law with morality x Only true law was that embodied in God’s will o o Earlier ages = law had a celestial or divine origin. and obligatory character on the law upon the rulers and people. One God dictated the moral pattern for all mankind o Law therefore meant simpy the moral or religious law which is laid down by God or developed by divinely-inspired human beings ƒ Opened for theocratic form of rule ƒ NO distinction between law and morality ƒ Conflicts resolved draconically by treating all valid human laws as nothing but expressions of the moral law x PROBLEM: source of moral law x Divine law was found in the Scriptures or declared by divinely -inspired human beings o Distinctions were made organizing laws that were regarded as fundamental and unchangeable (embodied the structure of society.

) x There may be a moral duty to preserve life. the State itself represents the embodiment of morality x BUT there may be conflict between law and morality (Ex. he may try to persuade the state of its moral error BUT if he fails to do so.________________________ B _A NGSI Y B UENDI A THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO C ULL O HATT O D E GUIA F ONACIE R G G ARCI A and UERRER O Hebraic approach to moral law personal inspiration x Æ divine afflatus (divine creative impulse) o “Credo quia absurdum” . if the law is CONTRARY to morality then morality both requires and justifies disobedience o This is why law and morals are viewed as two different identities o Both impose certain standards of conduct for human society to o survive They reinforce and supplement each other as part of the fabric of social life o Moral codes (what we OUGHT to do) generally refrain us from committing acts which the supplementing force of law forbids us from doing ƒ Ex. but NO legal duty to rescue another person who is drowning even if it would be done without risk to the himself. but it is also reinforced by the law that if we steal. law does NOT necessarily connote moral obligation. Many laws were not rational nor justifiably rational x Bottom line: Greek thought recognized human law possessing an autonomous position in human society o Human law did not depend on divine origin for its validity o Although autonomous. nor does moral obligation need to be translated into law Where Law and Morals Diverge x The law may condemn and even punish sexual immorality but refrain from attaching legal consequences (ex. human law could be subjected to moral scrutiny The Moral Duty to Obey the Law x Hebrew and Greek conceptions of law both underline the need to face possible conflict between the obligation imposed by manmade laws and those required by moral laws x Hebraic Æ human law contradictory to divine law is lacking validity o Human law is obeyed only when it corresponds with divine law x Greek Æ Morally obligated for a man to obey the laws of the state even if he believed it to be wrong or immoral. Development of the law protecting children and animals against cruelty is primarily a result of this kind of pressure from the determined individuals. Prostitution. ƒ Obedience to the law of the State is itself a principle of the highest morality ƒ There is a moral law independent of State law by which a particular decree of the State may be shown to be immoral or unjust ƒ This moral law does not override State law o Human law may conflict with moral law but the citizen must still obey State law though he may and should labor to persuade the State to change its law to conform with morality x The Relation of Law to Morals K HO LAUENGCO M M ARCELO ASIGLA T O AMINA L R ETIRAD O R __________________ _______ ONQUILL O x Philosophy of Hegel Æ individuals are “treated as submerged in the higher reality of the state whose superior wisdom could hardly be expected to be open to the persuasion of an individual citizen that it was in error or that its courts were unjust and immoral o After all. Greeks x Form of faith is rationalism Æ counter-force to moral mysticism o Contained some mystical and irrational elements in Greek religion and philosophy found in Orphic rites and Pythagoreanism but nevertheless there developed a very powerful attachment to rationalism x Rationalism Æ physical and moral order of the world were based on rational principles and that man shared this rationalism with the universe thus he was capable of understanding it x Understood that human laws differed greatly. it is his duty to obey. ƒ Ex. etc.I believe because it is absurd. x Law shrinks from pursuing what SHOULD be recognized as the authentic path of morality the impulse to reform the law generally depends o One reason is that on a relatively small section of determined individuals who have the moral force to produce a sufficient change in popular sentiment and bring about changes in the law. SJ) . This example shows how new moral duties can be recognized and over time be translated into legal duties PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER. and both describe what our duties and obligations may be o BUT remember. we will have some form of sanction imposed by the law o There is an obvious parallelism between codes of morals and laws. Our moral code prevents us from stealing from someone else. Parent has a legal duty to protect his infant child. If the state is wrong. o Plato’s Crito Æ Socrates explains why his condemnation may have been unjust BUT he must still abide by the decision of the state. but it may not give rise to an equally important legal duty o Ex. keeping a mistress. Both are concerned in laying down rules or norms for human conduct. Nazi laws) x There may be common ground between law and morality and although there is a moral duty to obey the law.

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Some states where adultery is a criminal and was held guilty of conspiring to corrupt public morals offence. o Difficult for the courts to develop appropriate tests to be applied in o May relieve the accused of legal responsibility such cases because it is the court. Homosexual relations between consenting male adults ascertaining of the requirement of public morals is in entrusted to the in private is difficult to enforce legally because it may do particular jury charged to the case. x Only with the change in the law itself that popular opinion is gradually rethen they may be released molded into a more enlightened viewpoint PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER. dictates o In other words Æ the sphere of morality is best left to the Crime and Punishment o individual conscience strongly criticized because the critics feel that This proposition was x This portion of the chapter talks about the conflict in determining whether or the effectiveness of criminal law is dependent on the moral standards not moral judgements should be eliminated from criminal law because the of the community and that this proposition would weaken the moral purpose is to protect society and reform the prisoner instead of determining authority of the law and the society it exists to uphold the guilt of the prisoner and the degree of his moral responsibility for the crime An Example from Divorce Law x “Guilt” in criminal law is linked to the idea of moral responsibility. telephone numbers of various prostitutes fornication. or desertion certain circumstances exist which render the offender not morally x Divorce act of 1969 abolished the old ground of divorce. Court also has to cases and thereby developing their rational principles which can be take into the account the protection of the public applied to other similar cases o If dangerous = detained. but instead they will consider psychiatric evidence and o One of the aims of the legal process is to try and achieve a how much he is likely to receive benefit (reform) from the punishment o This is not to say that if they will not receive any benefit from the general uniformity in cases of a similar kind o They achieve this uniformity by applying various criteria to actual punishment they will be automatically released. the Judge will expound on the law and convey his own insight on blackmail. cruelty. Such insanity that he no longer realized what he was doing. Also in accordance with English more harm than good. the matter x This portion of the chapter talks about how the system for developing x According to a libertarian proposition traceable to John Stuart Mill Æ the law should NOT intervene in matters of private moral conduct more than criminal law is far from ideal because the judicial decisions they make necessary to preserve public order and to protect citizens against what are based on the weak findings of juries as to what public morality is injurious and offensive. Might encourage other evils such as procedure. or desertion he was coerced into the act by an external force. and provided that the implicated in his offence sole ground now is “the irretrievable breakdown of the marriage. Or o Evidence with proof akin to adultery. who o Exception to this rule: instances where the accused is ABSOLUTELY decides whether the petitioner can be reasonably expected to live LIABLE in whatever state of mind they may have been in. SJ) 12 . Husband was given divorce decree on the basis of his wife’s association with another man falling short of adultery deciding upon the punishment to be inflicted o Ex. not the aggrieved party. → with the respondent generally only applies to minor offences x Another way morals impinge (impact negatively) on legal responsibility is in o Ex. they would have different solutions for considering the degree of moral responsibility a particular convicted similar cases person has. When no longer considered a danger. cruelty. Refusal to penalize private drunkenness or information like the addresses. Divorce decree was NOT given to a man on the basis that his o Law needs to be buttressed (‘to provide support’ or ‘reinforced’) by wife did not give him the affection he craved for the moral convictions of the community o Ex. Divorce was NOT given to the woman on the basis that her x Compromise Æ retaining concept of guilt and responsibility in relation to husband’s illness made him moody and caused him to bother her in the actual commission BUT eliminating it from the consideration of the evenings punishment x Initially. the law is regarded as a “dead letter” x The main point of the case with regard to Law and Morals is that the ƒ Ex. the court wanted to leave these decisions to the good sense of a o This way courts would not have determine the impossible task of jury but felt that if they did.” o Ex.THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO _________________________ANGSIY BUENDIA BULLO CHATTO DE GUIA FONACIER GARCIA GUERRERO KHO LAUENGCO MARCELO MASIGLAT OAMINAL RETIRADO RONQUILLO _________________________ o Another reason is that the law prefers to abstain from supporting the moral rule because they feel as though it The Ladies Directory Case would create more social evil than it would prevent x This case is about the publisher of a booklet containing ƒ Ex. morals reinforce the authority of the law and the duty to render obedience x Prior to 1969 in order to get a divorce you had to provide for some matrimonial x “Responsibility” in law is treated as excluding the possibility of guilt if offence: adultery.

tradition. Individuals had no higher right than to obey the laws of the state nd x 2 main attitude o Man-made law and moral law each have their own realm BUT moral law is a higher law o Conflict between man-made and moral law? Moral law wins. anything that does NOT conform to the moral law itself cannot be regarded as a binding law nd 2) 2 Alternative: Thomas Hobbes argued morality means nothing more than obeying the law ƒ Hegel believed in the moral superiority of the state. or social custom o Conflict between the two spheres cannot impugn the legal validity of manmade law or alter the duty of legal obedience although it gives rise to the moral problem as to whether or not the law must be changed o Conflict between legal and moral duty may have to be resolved in accordance with the dictates of the conscience of the individual and his moral courage to the defy a law which he believes to be contrary to what is morally right or just. mental. / ƒ OR W OMEN OF THE C HATERNAL O RDER OF CPO _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ A N G S I o o Barbara Wootton declares that the concept of responsibility could be allowed to gradually wither away Lastly. Based on the principle of utility. Hebrews and Calvinists) 1) st 1 Alternative: ONLY moral law is valid. expediency. L A W A N D N AT U RA L R IG HT S T h Earl y soc . In the same way that moral validity is ascertained by applying criteria as are necessary or appropriate in relation to a system of morality o Pragmatic view of law. and other aspects of the background of the accused person without any need to introduce the notion of responsibility at all. social.Y T HE UIA LAUENGCO M EN AND B UENDIA B ULLO C HATTO D EG FONACIER G ARCIA G UERRERO K HO M ARCELO M ASIGLAT O AMINAL R ETIRADO R ONQUILLO _________________________ o This new way of sentencing inquires into the facts of a particular crime. o Involves this notion of natural law. or the ‘natural rights’ of man which played a large role in the American and French Revolution rd x 3 main attitude o Each sphere of law is exclusive from one another o Referred to as “legal positivism” o Validity of legal rule must depend solely on legal criteria. it was admitted that this new approach rests on a number of unproven assumptions such as the capacity of modern psychiatry to rehabilitate the criminals Reason why this system is NOT in place is because of the risks of implementing this system is greater than the imperfections of the existing system C HAP 4: N AT U Conflicts between Positive Law and the Moral Law st x 1 main attitude RA o Law and Morals must coincide because moral law dictates the L content of human law (Ex.

SJ) 13 .en the natural world of the animate/inanimate and the world of human beings and human affairs x Nature Æ contrasted with the Supernatural and was always inferior and subject to the latter’s constant control o Nature – how people and things are expected to behave o Supernatural – deemed to have the powers to intervene at any stage of nature ƒ Looked to for the explanation of the course of events both human and divine x Few people attained to an approach to nature differing essentially from that described above in general terms o Chinese Æ advanced in civilization but did NOT arrive at notion of fixed physical laws of nature governing the universe ƒ Harmony as the governing principle instead of a divine lawgiver ƒ No pre-ordained laws but justice and harmony could be attained by following the appropriate rituals and customs o Judaeo-Christian Religions Æ focus on monotheism eliminates the capriciousness of Divine Intervention ƒ Encouraged the belief in a natural order of things divine and human ƒ God Æ divine lawgiver who has laid down fixed order of the physical universe and provided laws to govern human affairs The Early Greek Philosophers x Pre-Socratic philosophers Æ main objective was to explore the world of nature to find principles governing the universe. explaining its function and structure o Believed in the power of human reason and did not just rely upon inspiration or intuition to guide their thought Æ Rise of Rationalism o Consequences ƒ Possible determination of rational principles to govern human conduct as an individual ƒ Man’s conduct in society Æ nature identified with truth and rightness x No real rules governing human conduct which are natural to man since these differ from community to community ƒ Laws are therefore a matter of conventional arrangement P HILOSOPHY OF L AW : T HE I DEA OF L AW (F R F ERRER .

property. intuition. nothing changes FACTUAL NATURE A study of man as he really is IDEAL Expressing the fundamental aspiration of man in his full potential An ideal standard against which the non-natural or purely conventional may be measured LAW Primarily starts from man’s behavior To be elicited by reasoning. revelation.expounded on the idea of justice so far as it can be grasped ƒ Justice as absolute and can only be apprehended by the philosopher and be fully realized by the rule of philosopher kings Totalitarian concept of law and government of the most ƒ rigid and inflexible kind (like most Utopians) Aristotle x Attempted to develop the realms of knowledge in a scientific spirit through the use of observation and experience o o Naturalist Æ arrived at a dynamic view of nature as the capacity for development inherent in things Justice in human affairs might be ƒ Conventional Æ varying from state to state according to history and particular needs ƒ Natural Æ common to all people based on the fundamental purpose of man as a political being ƒ Among human beings. entitled to claim moral superiority over local and conventional rules governing particular states M M R O ARCELO ASIGLAT AMINAL ETIRADO x Christianity and Natural Law R __________________ _______ ONQUILL O A universal law of nature was ascertainable by reason which provided a touchstone for determining the justice of man made laws x Judaic view of law was that it represents God’s will on earth and is thus supremely good x For Christians. SJ) .rediscovery of Aquinas’ writings during the Middle Ages x Scholasticism Æ attempt to assimilate Aristotle’s writings into the fabric of Christian theology o Influenced by Aristotlean view of man as achieving his natural development in a political society o Rejected the notion that law and government are rooted in sin and are therefore imperfect o Distinction had to be made between divine law and natural law x Scholastic Philosophy o highly rational as it relied heavily on truth as elicited by logic and deductive reasoning x Some parts of natural law were destructible and could be replaced to meet the needs of changing conditions and developed the implications of x Human law filled the gaps of natural law natural law in relation to human relations Renaissance and Secular Natural Law x A new scientific approach which ignored the claims of theology and concentrated on observation and experiment aided by human reason th x Golden Age of the law of nature. or some process The Stoic Philosophy x Stressed the universality of human nature and the brotherhood of man o Emphasized reason as the essential feature of humanity o Doctrine of laws ƒ Polis Æ laws of a man’s city (isolated) ƒ Cosmopolis Æ law of a universal city x Purely rational law and. o Emphasis on rational character of natural law x Grotius PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER. everything is subject to change even natural justice but among gods. as such. endured til end of 18 c. which derived from the Fall of Man x Augustine Æ wrote The City of God which equated the Platonic realm of ideal justice with the conception of the City of God on earth when Christian justice will at last reign x Human institutions as law. and slavery are imperfect on account of sin but still form part of the necessary order of things x Natural law is equal to Divine law in that they are partly miraculously revealed and partly ascertainable by reason x Link between natural law and Christian theology increased its authority Æ natural law now imposed by God and was expounded by the Pope o Idea gaining currency Æ human law is subordinate to natural law and cannot stand if it conflicts with the latter Aquinas and Scholasticism x Important element of Catholic philosophy . earthly laws were mere evils arising out of man’s sinfulness.________________________ B _A NGSI Y THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO B UENDI ULL A O C HATT O D E G UIA F ONACIE R G ARCI A G UERRER O K HO LAUENGCO Nature in man Æ NO more than instinct ƒ and so much of human law is directed towards the curbing of man’s instinct Plato and Aristotle Plato x It was possible for the Wise Man suitably educated in philosophy to attain a vision of perfect realm which may lay beyond the world of senses x Idealistic approach Æ regarded the idea as the kind of absolute thing in itself enjoying the higher degree of truth and reality than the mere physical appearance of the world o Republic .

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THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO _________________________ANGSIY BUENDIA BULLO CHATTO DE GUIA FONACIER GARCIA GUERRERO KHO LAUENGCO MARCELO MASIGLAT OAMINAL RETIRADO RONQUILLO _________________________ o Believed that natural law would still apply even if God didn’t exist because of the unique quality of man’s reason and the rational element shared by men o Reason dictated a natural order in human affairs elicited by reason alone which should operate everywhere o Sovereign states are governed by natural law in the international arena x Edward Coke held the view that common law could even treat a statute as void if it is contrary to reason x Development of law as a rational scientific body of rules designed to achieve justice in the prevailing social and economic conditions Thomism Natural Law and Natural Rights government to enter a Social Contract wherein the ruler protects the rights Natural law looked to as the source of fundamental democratic rights restricting the freedom of rulers o American Revolution strongly influenced by Locke’s philosophy ƒ U. Constitution Æ this owed much to natural law in its inception x Duty of the Judge to interpret the actual Constitution and not the higher constitution from which it is derived x Claims for natural law o What is reasonable. or needs Strong emphasis on social immutable in all times and conditions Æ approach is natural law with a variable content 2 views on Natural Rights x Locke Æ man is born with natural rights which he gave up to the THEORIES OF NATURAL LAW IDEALIST Philosophical Neo-Kantism (cateogircal imperative eÆ we should act so that our norm of conduct might be translated into a universal law) Stammler and del Vecchio FACTUAL Sociological PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER.S. philosophy of the Enlightenment + feeling that natural law was devoid of any scientific/natural basis + feeling that natural law ignored vital role of historical processes in the development of law Catholic Apply scientific methods from emergent social sciences to elicit primary data of man’s fundamental drives.doubted the whole fabric of traditional morality and wishes to transform morals into a cult of superman o Tolstoyism . fair and just o When something is done in good faith x Usefulness of natural law o National Level Æ law is obliged to give solution to human life via prohibition or permission with or without conditions ƒ Whether the law should impose capital punishment (a moral controversy) o International Level Æ still at a primitive stage of developing an all-encompassing law o Resolve conflicts between the law and morality Modern Approaches to Natural Law th x 19 c. Constitution Æ natural-law document th ƒ Natural rights became positive law through the 14 Amendment x Natural rights given special authority in courts and legislation wherein infringement of rights is punishable x Natural rights are enforced as legal rights x Rousseau Æ man is born with natural rights which he surrenders to the general will o General will Æ the whole is not the sum of individual right o Whether the ruler violates the rights or not. Æ lowest point of the natural-law school o Legal positivism and Hegelianism took its place th o Reaction against excesses of rationalism in 18 c. Æ natural law is substituted by the belief in human progress and a firm conviction that the established blessings of civilization were being consolidated and gradually spread universally among mankind Rise of Irrationalism o Nietzsche .repudiate all laws of government and favor primitive Chrisitianity Relevance of Natural Law to the Modern World x Incorporation of the Bill of Rights in the U.War Revival of Natural Law x Nuremberg Trials. SJ) 15 . Eichmann Trial. Nazism caused the development of Customary International Law which is founded on natural law x x th 19 c. he can be removed from power because people are the sovereign o French Revolution Æ overthrow the ancien regime and impose the natural law of reason in its place o Weakness Æ any person (demagogue) can seize power to claim that he represented the general will and so impose his authority o (Neo-Kantian legal philosophers) strive to deduce rules implicit in Kant’s universal law Stamlmer: rules cannot be sciences in the US led to greater development of sociological approach in the US more than anywhere else Post.S. urges.

In the field of facts 2. law o Such view would certainly be accepted by the English court of because courts exist to uphold the law and are not to be concerned with the goodness or badness of that law x Positivists attack the natural-law idea not merely because it makes for muddled thought but also because it creates a barrier against law reform x Bentham believed that a theory identifying law and morals in a close manner would lead to either of these two severe barriers to the rational advance of mankind in the interests of progress o A reactionary claim by those it benefited that the law was the acme of reason and perfection. rule that we should love our neighbors as ourselves) x The question remains: whether any rational standard could be found which could provide the means of judging between right and wrong x Kant attempted to provide Hume an answer by asserting that “ought” contained the absolute rule of morality which he called the categorical imperative The Principle of Utility (Bentham) x The behaviour of mankind was dominated by the influence of pain and pleasure x Utility = no more than what served to increase human happiness x Numerical standards were adopted. Those in South Africa who are persuaded that the repressive racial laws of apartheid are fundamentally immoral x . the citizen was entitled to disobey it x Bentham’s approach: The legal duty does not cease to be a legal duty because the citizen is persuaded of the moral inquiry of the duty. It is up to one’s own conscience whether he would choose to comply/obey or not. and the like x The moral worth or expediency of the legal rule is irrelevant because it nonetheless remains legal o Expository jurisprudence Æ what the law is o Censorial jurisprudence Æ what the law ought to be x Did not pay much attention to the issue as to whether when a law stood morally condemned. or o Its total rejection by the oppressed on the ground that it offended x the first principles of natural justice The ultimate goal of reform could only be attained by a cool-hearted evaluation of existing law in two ways: o by the standard of utility o by unflinching pressure by rational persuasion for its amendment ƒ Such an argument stems from the belief of the Age of Enlightenment in the ultimate force of human reason and could appear to be devoid of reality x The legal positivist would always argue that there is no advantage in confusing the legal and the moral issue. human law shares with morals the characteristic feature of being normative (since human law lays down rules of conduct rather than stating facts) o Difference: law required a certain measure of regularity of observance while moral obligation may still be valid even if not observed (ex.. Conflict arises in the very separation of legal and moral duty o Ex.________________________ B _A NGSI Y B UENDI A C ULL O THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO HATT O D E G UIA F ONACIERG ARCIA G UERRER O K HO LAUENGCO M ARCEL O M nonsense R upon R stilts __________________ _______ O ASIGLAT AMINAL ETIRADO ONQUILLO He was a rationalist and claimed that natural rights were “ ” ƒ Aimed at maximizing human happiness x Principle of utility was a metaphysical principle whose truth could not be ƒ CHAPTER 5: LEGAL POSITIVISM Physical and Normative Laws x Positivist approach – emphasis on humanism o the secular studies of science and th the early 19 century Empiricism associated with observation as a means of ascertaining laws of science th x Until the 18 c. each man’s happiness being considered equal in value of that of any other man o Test of utility: what served the happiness of the largest possible o demonstrated because “what is used to prove everything else cannot itself be proved” x Served as a solid juridical foundation for much of that reform of law during number Based on Bentham’s principle “the greatest happiness of the greatest number” ● Provided the appropriate climate for the move towards legal positivism The Move to Legal Positivism 1. religion. LAW AS IT IS AND AS IT OUGHT TO BE Bentham Æ law could only be properly understood if it were treated as an autonomous field of study free from al issues of morals. Moral obligation o Although distinctions exist between human law and morals. In the field of “ought” o Normative = refer to standards of conduct (“ought) x Fact vs. NO clear line was drawn between physical laws (which dealt with propositions about the world and which could be refuted by empirical evidence showing their non-applicability) and normative rules (which laid down standards of human conduct) Is and Ought x Hume pointed out that there are really two realms of human inquiry 1.


but he would presumably resign his judicial office Law as a Science th x 19 c. such situation would seem to be impossible because he would have to: ƒ declare himself ex cathedra as an authoritative exponent of natural law ƒ decide that its decrees compel him to ignore his own municipal laws x Natural law is a matter of keen controversy even on a theoretical basis o In any case. “It isn’t law at all in any fundamental sense.THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO _________________________ANGSIY BUENDIA BULLO CHATTO DE GUIA FONACIER GARCIA GUERRERO KHO LAUENGCO MARCELO MASIGLAT OAMINAL RETIRADO RONQUILLO _________________________ ƒ A believer of natural-law will urge that these laws lack legal validity because they are contrary to the dictates of a higher law binding on all mankind ƒ The legal positivist will accept their juridical validity but condemn them on moral grounds according to whatever criterion of morality he accepts x Moral dilemma: “It is law but I won’t obey it because I believe it to be wrong” vs. or law as it actually is (during that period). and psychology. anti-apartheid judge in South Africa o Both theoretically and in practice. he would refuse to apply unjust laws as they are invalid o Ex. the judge is still obliged to apply municipal law and NOT to apply his own personal speculations as to systems of higher law x If the legal positivist were to perform his legal duty. social anthropology. Anti-Nazi judge in Hitler’s Germany. Æ science took the spotlight because of theoretical knowledge and technology o Feeling that every field of study must organize itself on scientific footing it was to contribute to general march of progress x Darwin’s demonstration of how evolution could have accounted for both the present state of the animal world and of man’s own development by emphasizing man’s continuity of evolution from the animal world seemed to point the way to treating the affairs of mankind as open to scientific investigation just like the case of other phenomena of nature x “Positivism” o Devised by the French philosopher Comte to designate his own particular philosophic system o Derived from a belief that adequate knowledge could be attained only by employing the scientific method of investigating reality x x by observation and subjecting its theories to empirical investigation o Comte argued that there were 3 steps in the development of man’s approach to the world ƒ The religious ƒ The metaphysical ƒ The positivist o Comte turned to the study of man in society and strove to create a new science of sociology by which the whole of man’s social activities might be viewed in the light of scientific principles The scientific spirit is so pervasive that it was to be found be infiltrating arts and literature o The school of naturalism and social realism = an attempt to create a new type of fiction based on scientific investigation and written by scientific methods o John Constable in 1896: “Painting” is a science. and law as it ought to be ƒ Only law as it actually is is the appropriate subject matter of this science x Law as it ought to be constitutes a distinct field of its own to be investigated not by the jurist but by the theologian Austin’s Science of Positive Law x Austin was mainly impressed by the fact that law as a self-contained body of rules applicable to human society operated by means of a system of conceptual thought x His aim seems to have been to examine the essential features of this conceptual system o PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER. he would submit that the laws of the state are clear and it should be applied according to its letter and spirit o What action he should take would be a matter of his own conscience. and should be pursued as an inquiry into the laws of nature ƒ Courbet’s realist painting has been said to reflect Comte’s new science of sociology In an age when science and scientific method were acquiring such unique prestige. and therefore I am not bound to obey it” The Judge and His Conscience x x If a naturalist judge would perform his true legal duty. jurists should be persuaded that legal theory also both could and should be capable of development on scientific lines Bentham gave serious thought to the general pattern and structure of law as reflected in unpublished manuscripts. but also giving a . and the serious development of such sciences as sociology. whose work is usually treated as a main source of what he called “ the science of positive law ” ƒ “The science of positive law” emphasized on the distinction between positive law. which were later published as Of Laws in General o Reveals an insight and sophistication far beyond that of his discipline. John Austin . SJ) Involved not only endeavouring to determine the actual structure of law and of the functioning of a legal system.

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validity PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER. property. civil wrong. past or present x He was persuaded that there was sufficient in common in the conceptual framework of all legal systems to justify a general jurisprudence by w/c conclusions of general validity might be attained. and others in relation to these complex legal rules x During Austin’s time. judges. recorded cases._______________________ B __A NGSI Y B UENDI ULL A O THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO C HATT O D E G UIA F G ONACIER ARCIA G UERRER K HO O LAUENGCO scientific exposition of all the fundamental notions w/c provide the framework of such system ƒ Such framework is comprised of key concepts such as rights and duties. Attacks on Legal Positivism 1. but limited his inquiry to x what he termed the ”more developed” legal system Legal positivism thus tended to be associated with A CONCEPTUAL APPROACH to jurisprudence which has brought it to bad light in recent times The Conceptual Approach st 1 criticism: A legal theory confined to analysing fundamental concepts tends to induce a frame of mind where legal concepts are regarded as possessing a certain inherent structure and that any developments of law which disregard this structure are illegitimate Æ barrier to certain forms of legal reform! x May impose an undue restriction on the legal process in adapting the law to new and changing social and economic conditions nd 2 Criticism: Legal problems can be solved by means of logical analysis. the need for a more sociologically-oriented science of jurisprudence has been increasingly felt x The sociological jurist also assails the positivist axiom that law as it is and law as it ought to be are two distinct and watertight compartments because the law is not static but a dynamic and developing body of doctrine and many of its developments are produced by judges who are either consciously or subconsciously reaching decisions on the basis of what they think law ought to be x Scientific jurist cannot ignore the fact that its own development of some value system acceptable to the community is built into the law and the way in which the value system directs or controls the changing complex of legal decision forms a vital constituent of a legal system x However. for instance: ○ The courts merely have the task of working out and applying on rational lines the given principles of the law. SJ) . Hence. crime. dreadful injustices such as what have been carried out in recent European history x The legal positive does not assert that the law is not subject to moral condemnation if it deserves to be condemned x The positivist denies that value systems can be proven true x The notion that legal positivism has led to dictatorship in modern times is palpably false because it is in the Anglo-Saxon world of the common law that this legal doctrine has held and still holds widest sway and democratic value systems have attained as high a standard of legal recognition and enforcement there as anywhere in the world. has controlling legal made it possible for totalitarian dictators to bend the laws and those who administer them so as to perpetrate. the conceptual approach associated with positivism has certainly laid itself open to the accusations that it tends to an excessively logical approach and tends to underestimate or unduly diminish the law-creating functions of the courts rd 3 Criticism: To be heard among modern jurists can probably be directed with more justice even against Austin himself. ownership possession. by its refusal to acknowledge an absolute higher morality . on x Developed very largely on the lines of an analysis of fundamental legal concepts x It involved selecting one’s data for research on the basis of actual fact acquired by observation o Such data would have to be collected from actual legal systems. neglect of second-order facts is understandable. disregarding the role that policy plays in arriving at legal decisions that the answers x The conceptual approach to legal theory leads to the notion to legal problems can be arrived at by working out the logical implications of legal principles. persons. found wanting x A positivist may still insist that the validity of law is distinct from the question of its moral rightness even while adhering to some system of absolute moral values. and so . the judiciary can regard itself as isolated from all questions of policy. this does not in any way vitiate the main proposition of the legal positivist that the validity of an established rule is not impugned by its conflict with some value system established by religion or morality or any other nonlegal source Where Positivism Stands Today x Positivist legal theory is usually associated with a belief in the possibility of finding an absolute standard or norm outside the legal system itself by which the validity of a rule may be tested and. Legal positivism. its duty being merely to apply mechanically the principles supplied to it by the law x There is doubt whether Austin would subscribe to these criticisms but still. contract. and law books associated with given legal systems Behind such second-order facts lies an enormous mass of firstorder or primary facts consisting of the actual behaviour of legal officials. if necessary. but at present. He seemed to overlook that the level of investigation on which he contemplated that his science of positive law would operate was really only that of second-order facts x x M ARCEL O M ASIGLA O T R AMINAL ETIRADO R ___________________ ______ ONQUILL O Namely the rules of law as contained in the statutes. under the guise of legal authority.

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he recognizes differences in ideologies and beliefs x The positivist shares with the natural lawyer a rationalist approach to the moral values of his society x The positivist while retaining his faith in systems which can be subjected to rational scrutiny. a more general purpose that law everywhere aims for Æ JUSTICE o Are not those values themselves merely an individual expression of the general striving towards justice itself? What is Justice? x Is a moral value o One of the aims or purposes which a man sets for himself in order to attain the good life ƒ “Good” x As a means (ex. all leading to some ultimate good ƒ What the ultimate good is not a matter of demonstration. and labourers. warriors. happiness as the ultimate end) ƒ Classification of various goods or values of society in a hierarchy so that some of these are merely means to attain higher values. therefore he alone will act as ruler ƒ Potential rulers are to be selected by attainments + education before being qualified to rule o Based on the Aristocratic idea that every person is inherently adapted to some specific function ƒ If he departs from such function. it is a matter of choice M ASIGLA T O R including Plato. he is guilty of injustice ƒ Resembles the feudal idea of the three orders of society (priests. each with their own selfcontained function which was not to be overstepped) o Plato’s system seems based on the fallacy that each man is by nature fitted for one specific job or function and that there is such a job or function adapted to each person’s natural attainments or aptitudes Formal Justice and Equality x Conception of justice through the ages o Greeks – embodied by inequality because of the very lack of natural equality between human beings called for different treatment o Modern – equality is the very essence of justice. liberty as a means of attaining happiness) x As an end (ex. approach to ethics and law. it will judge the existing law in accordance with those values and try to amend it or adapt it However. Attempts have been made to show that absolute moral values do and can be demonstrated to exist by various means human reason x Appeal is made to revelation/intuition/a belief in common to all mankind by which it is possible to arrive an unassailable moral truth o Still not possible to claim absolute value system x The positivist does not deny that rational arguments may be applied to the moral evaluation of law as to other subjects and is often in favor of law reform and moral progress HOWEVER.________________________ A _exist NGSI Y B B UENDI A THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO C ULL O HATT O D E G UIA F G ONACIER ARCIA G UERRER K O HO LAUENGCO M ARCEL O 2. have placed justice as the ultimate good Platonic Justice x The Republic o The microcosm of the just man is a reflection of the pattern of the just society which is an ideal society o Everything or person has its proper sphere and justice means conforming to the sphere o Only the wise man is fit to rule in a just society. R and the_________________________Hebraic AMINAL ETIRADO ONQUILLO x Some lawyers and philosophers. prefers to concentrate on studying the values that are inherent in our present stage of civilization and on exploring how these may best be realized in the conditions of today x The positivist believes that a clearer understanding of human social problems can be attained by keeping the questions of legal validity and of moral worth distinct CHAPTER 6: LAW AND JUSTICE x Law Æ related to the system of values recognized in the particular community in which it operates o x Absolute superiority of any particular system over others is when a community believes that its values are the highest attainable. it is attaining equality and not preserving inequality as the vital function of justice x Link of equality of treatment and the justice o Because of the association of justice with legal proceedings ƒ Law is applied equally in ALL situations and to ALL persons to which it relates x Justice as a formal principle of equality o Does not mean that we treat every alike regardless of individual differences o It means that everyone who are classified as belonging to the same category is to be treated the same way (like treated as like) o Requires equality of treatment in accordance with the classifications laid down by the rules BUT tells us nothing about how people should or should not be classified or treated ƒ Justice is an empty category (resembling Kant’s categorical imperative) .


and to provide general rules for dealing with them 3) Impartial Application – impartiality is generally closely associated with law in the sense that it is regarded as a highly desirable attribute or aim of any legal system but practice is often very different x Situations where impartiality takes into play o When a state or country is governed in theory by rules which capriciously applied . the spirit of equity invoked to enable the law to be developed in a juster and more humane manner than was permissible within its strict letter PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER. traditions and. there formal justice may press very hard in individual cases This is why legal system need: Reference to the equitable element is a means of mitigating the o According to Aristotle. religion) ƒ Adherence to such value-judgment Æ one of conscious o strict letter and to limit or control their operation in cases of hardship ƒ In short. these constitute a kind of Concrete Justice – how to decide whether the actual rules are just o In Ethics by Aristotle. this legal system is defective in certain cases framework of rules BUT deliberate value-judgment that certain differences between human beings are not appropriate grounds for discrimination (sex. he calls it Distributive Justice which deals with the distribution of honors and awards by the state to persons o according to their deserts. like the Ritz Hotel. Same idea expressed by Roman Emperor Justinian. because of the likelihood of corruption or personal factors which can influence decision it could hardly be said that a legal system really exists o A legal system where the law is generally applied with regularity BUT where certain sections. they shall provide that everyone who qualifies as falling within the scope of the rule shall be governed by it . is open to rich and poor alike” x Attributes of justice in a formal sense o There shall be rules laying down how people are to be treated in o given cases Such rules shall be general in character. classes or individuals can usually rely on the favorable treatment both from the courts and other legal authorities. the general nature of rules means that not every individual situation can be foreseen or provided for adequately . social and economic environment o Equality taking an important place in the scale of values x Equity discretionaryORpower toRinterpret the_________________________lawsin M ARCELO ASIGLAT AMINAL ETIRADO ONQUILLO ƒ o People are in fact not born equally (physically. legal or non-legal justice has been largely derived from or x The very conception of formal modelled upon the conception of law itself x Features of formal justice 1) Existence of Rules – it contains rules for regulating human behaviour and settling disputes 2) Generality – general in character because the whole purpose of law is to classify acts and situations. or fear or favour. it is impossible to predict even the most straightforward cases how individual decision will go. color. to all those whose cases fall within the scope of the rules Substantial Justice These M choice and moral conviction which cannot be deduced from formal criterion of equality incorporated in idea of justice x For Aristotle.____________________ _____A B NGSI Y B UENDI A THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO C ULLO HATT O D E G UIA F ONACIER ARCIA G G UERRER K HO O LAUENGCO x o o general rules shall be Legal Justice x Justice is a much wide conception than law and may apply wherever there is a code of rules. SJ) 20 . “ justice should be administered with mercy ” The system of equity tended to grow increasingly rigid and more like a supplementary system of law than a means of tempering the strict dictates of justice according to law On the other hand. tribunals and equitable principle built into the rule of law itself ƒ Not merely logical principle of treating like as like within a o To correct the rigour of law. there has also been a considerable growth of discretionary powers conferred on courts. race. who said that justice consists in “giving to each man his due” ƒ But what is due? ƒ There is a need to establish a scale of values which guide someone in discriminating between the various competing claims ƒ The values we affirm are a matter not of logical necessity but of choice not imply that our choice is x This does absolutely free because it is deeply conditioned by our history. the agencies o impartially applied concerned in administering them shall apply them without discrimination. equity apparent rigours of the law o In Roman Law. mentally or in other respects) ƒ A cynical English judge of the Victorian era said “The law. to confer the spirit of equity rather than insisting on their administrators by modern legislation.

including the legislative. and this means that its actual rules must. the only standard of justice is the law itself so whatever rule the law lays down must ipso facto be just o Hobbes seeks to treat all laws as just by definition. it may be said that built into it is some kind of value system which the law reflects o Ex. a separate system of equity developed in order to turn aside some of the harshness of a strict la ƒ The close correspondence between formal justice and law felt the need for softening their respective rigours to meet individual cases of hardship Law and Substantial Justice x It is NOT enough that a system of law to comply with the formal attributes of justice even though tempered with a spirit of equity x Law needs to possess a just content. inherent values of English society NOT contained in a specific legal document but are distilled out of a long historical tradition manifested in certain institutions. within established rules. though perfectly impartially administered according to its tenor is itself unjust if judged by whatever value system may be applied to test the substantial justice of the legal rule According to Hobbes. more specific guidance as to the values they should adhere to in arriving at decisions or expositions of the law or in framing new legislation In every legal system. SJ) 21 . Rule of a state excluding members of particular races or religions from participating in elections Æ might be applied perfectly justly in relation o those subject to this rule.THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO _________________________ANGSIY BUENDIA BULLO CHATTO DE GUIA FONACIER GARCIA GUERRERO KHO LAUENGCO MARCELO MASIGLAT OAMINAL RETIRADO RONQUILLO _________________________ o o In English Law. but conflicts with the scale of values by which we choose to judge it x x x Lack of impartiality still remains as a fundamental breach of the conception of formal justice 3) Injustice in this sense is the scale of values Equity as a kind of justice and formal justice may be treated as unjust if it complies with the rigid logic of its own requirements but fails to temper its conclusion in a spirit of equity with the particular circumstances of the case o A rule may be perfectly justly administered according to its tenor and yet may itself embody the most profound of injustice ƒ Ex. by their provisions. aim at and endeavour to conform to some criteria of rightness which depend on values exterior to justice o Therefore. in practice. even the highest court may subsequently be entitled to overrule its previous decisions as being wrong in law When the law is not duly administered in that spirit of impartiality which it requires Allowing the flexibility in the rules does not mean to provide a set of values for the law to apply but gives the judiciary scope. to have regard to the dominant values accepted in the society in question 2) Give the judiciary and other officers of the law. assertion that law aims at justice CANNOT provide a substitute for a scale of values Legal Injustice x Three (3) types of Injustice in relation to law 1) When the law is closely linked in the general opinion with the idea of justice that it may be treated as synonymous with justice x “Court of Justice” can be a synonym of “Courts of Law” because of this x Legal Injustice is done when a case is decided contrary to what the law itself says o However. but the substantial justice of the rule itself still remains entirely open to question In Closing PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER. the complexities of most legal systems are such that they are full of uncertainties as to what the correct interpretation is in many situations ƒ 2) x x Two (2) principal ways to attain not merely formal but also substantial justice: 1) Imparting a certain flexibility in the rules applied by the courts or other organs of legal administration so as to confer on the judges and other legal officials the possibility of developing the law and adapting it to the needs of the society in which it operates x More limited but in some ways more pervasive in the long run Ex. decision of the higher court may not in the eyes of the legal profession seem to be soundly based as a matter of law. and conventions of the courts Æ courts embody the spirit or values of the English way of life in their decisions x Those who are educated in this tradition can generally be presumed to be cognizant of the spirit of the community o Such an approach may serve for a country with a long tradition of ordered government and with a fairly homogeneous population which is broadly in accord as to the essential values which embody the spirit of the values of the community o BUT in less integrated or more recently established states may require something more explicit than the repertory of laws and tradition x Value of this approach is o It makes explicit some of the underlying assumptions of the legal system o It may render these into obligatory and overriding legal norms capable of being enforced by the legal process x When the law. but he has been rightly rejected by most philosophers and lawyers x English Chief Justice Sir Edward Coke attempted to equate the law with moral principle and natural law when he described common law as “the perfection of reason” x “Unjust law” Æ law which is valid in itself. constitutional principles.

____________________ _____A B NGSI Y B UENDI A . there remains a large sphere for individual choice as is compatible with public welfare Law = Concerned with externals as opposed to the spiritual development of the citizen ○ Law guarantees the maximum degree of “negative” freedom ■ The law does not care how the individual makes his choices so long as it is within the parameters of the law IV.. Basic Human Rights ● Historical Context: ○ Americas and the French Revolution = expressed the value of basic human rights to society ■ Approach originated distinctively from natural-law ○ America .evolved the idea of expressing these rights in a written document (Constitution) ■ Judges were left to determine the legal effects of these rights. yet everywhere he is in chains. restraint is not an encroachment upon liberty ○ EXAMPLE: Law restricts physical assault ■ If indiscriminate assault was permitted. as well as. the scope of these provisions ■ Marshall: Rights were “over-riding” and that any legislation violating these rights were invalid . then there would be a lack of security à implications on the safety of human society ○ Hence. where the and for assuming community is dominant and the individual individual responsibility counts for little (Collectivist) (Individualistic) Western Society Democratic Soviet Union or the Former Nazi Germany III. Positive and Negative Freedom Definition ● POSITIVE FREEDOM NEGATIVE FREEDOM A spiritual conception wherein Organizing the pattern of society. not absolute M ARCELO ASIGLAT R CLOSED SOCIETY rights which expresses in general terms some of the main assumptions of the scale of values to II. restraints play an indirect role in ensuring the freedom of all. Introduction ● Law functions as a means of directing and imposing restraints upon human activities ○ Law + Freedom = Paradox ● Answer to the Paradox: ○ Man is a social being living a life of complex inter-relationships with the other members of his community ■ Man cannot be seen as a single individual ○ Rousseau: “Man is born free. either on the lines of natural law or some acceptable ethical basis x A written constitution embodying a bill of O ■ AMINAL ETIRADO ___________________ ______ ONQUILL O Societies are capable of shifting from one end of the spectrum to the other OPEN SOCIETY which it gives effect may go some way in closing the gap between formal and concrete justice CHAPTER 7: LAW AND FREEDOM I. ” ■ Man is free in the context of his community à Freedom is not absolute ■ Freedom is enjoyed within the social restraints imposed upon him by his society ● BUT. that there is a maximum opportunity for “self-realization” of every individual to his full human capacity despite all restraints and limitations placed on individual actions for the benefit of society. C ULLO HATT O THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO D E G UIA F ONACIE R G ARCI A G UERRER K HO O LAUENGCO x When some of the fundamental values of a legal system are embodied in the constitution it may be thought that these will make unnecessary any farther search for underlying values. “Open” and “Closed” Societies M R Philosophy Example Wide field for personal decision Tribal and collectivist pattern. ● Historical Context: ○ Earlier societies = Inequality was the fundamental law ■ Freedom was regarded as ensuring that man had security in the station of life in which Providence had placed him ■ Societies the recognized slavery à Slaves and serfs had no protection in a legal sense ● There was an acceptance of their station due to traditionalism and obligation ○ Modern societies = Freedom is linked with an egalitarian concept of society philosophy advocating the ■ NOTE: Egalitarian – A social elimination of inequalities in society ● “Open” and “Closed” Societies ○ Employed by Max Weber ○ Ideal types.


religion. The Right of Association influencing public opinion by reasoned argument form a vital element of democratic equality ● Right of various types of groups. Equality and Democracy one-sided was overlooked by those who viewed freedom of contract as the ● Legal Equality foundation of a free society ○ Expression of the democratic organization of society. Freedom of Contract legitimately restrained in order to protect the public against ● Historical Context: monopolies. upon this principle to ensure the welfare of the community ○ Marxist and Semi-Marxist system (specifically Soviet Russia): 2. whether social. the element of free discussion and the possibility of D. for the purpose of ■ Believed that society could best be developed through the making protests or attempting to influence public opinion and so forth right of a citizen to make his own contractual arrangements ■ This right may clash with the right of the state to preserve public order PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER. it would seem ○ Despite the universal acceptability of this freedom. Main Values Expressed in Legal Freedom G UERRER O legal K HO LAUENGCO M M ARCELO O ASIGLAT AMINAL R ETIRAD O R ___________________ ______ ONQUILL O ○ United States à freedom of contract was abused by both individuals and corporations ■ Countered the abuses by transferring it to state control ■ First Move: Legislation against monopolies and restrictive trade practices ■ Social Welfare Legislation was propagated ● The lack of equality of bargaining position which made freedom entirely A. political. ● Present day = Property should not be arbitrarily acquired from private ○ UNLESS. Rules of law that are not expressive of the mores or standards of became authorized by a duly elected representative legislature conduct which prevail in a given community amount to nothing more ● Inviolability of property is an important value in Western societies than dead letters. through passive or active resistance by the ○ Important inroads regarding control by the State has been made people. which can be used in social progress. If law is to be an effective focus for giving expression to fundamental values. or economic. ■ State interference was regarded as a great evil ○ Right of the people to hold public meetings. SJ) . or color is not to be regarded as a valid principle of discrimination between one citizen C. acquired by work and is confined to articles of personal use ● Dilemma: Involves a non-democratic procedure of an “enlightened” minority and not the means of production or land (In Soviet Russia) leading the recalcitrant or resistant majority in a direction it does not wish ■ Objects of ownership is limited to go. the recognition of of protection in contracts equality before the law and the principle of non-discrimination ○ Growth of the “standard-form” contracts further exposed the ● “Non-discrimination” = Biggest difficulty unreality of freedom of contract ○ Fundamental notion: difference of sex. its interpretations ○ democracy is inimical to all progress beget varied consequences In this situation.________________________ B _A NGSI Y B UENDI A C ULL O HATT O THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO D E G UIA F ONACIE R G ARCI A ● Supra-National (International) = expressed the entitlement of all human beings ○ Universal Declaration of Human Rights of 1948 ○ European Convention of Human Rights ○ Declaration on the Rule of Law V. by a universal franchise. or of ■ EXAMPLE: by the decisions of the U. it cannot be merely a reflection of those values but rather a ■ Protection of private property is accorded only to property positive directing force. race. The Right of Property and another in relation to legal rights ● Societies generally find that preservation of property is one of the supreme ○ Difficulty: Modern states like that of Nazi Germany (Anti-Semitism) purposes of law and Union of South Africa (Apartheid) ● Power of the state to tax the citizens seems to encroach upon this right ■Erection of racial or religious discrimination ○ Reconciliation was found by the introduction of the principle that ● 2 Important Lessons: taxation was permissible provided there was consent to it = taxation 1. restrictive practices. Supreme Court any other kind to organize themselves versus the mass prejudices of the public ● When we speak of Right of Association. and fraud ○ Regime of laissez faire = freedom of contract was in some way seen ○ Right of labor to organize itself in trade unions and to deal on a as one of the supreme values of a developed society collective basis with employers or associations representing them.S. we speak of multiple things: ○ Right of business enterprise to organize itself and how far it may be B. it is recognized that there must be scope for impetus from persons without adequate compensation minorities rather than yielding to mass prejudices. to be insured● Modern Society = Recognized that multiple classes of persons are in need as far as practicable.

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Freedom of Speech and of the Press ● Fundamental values in democratic and egalitarian communities ○ Without these values. Australia. but also in the enjoyment of a reasonable standard of life whether in or out of employment. trade unions have changed from being treated as outlaws to being essential organs of modern ● ● ● democratic community But. the possibility of developing and crystallizing public opinion. and therefore that it should not attempt to restrain the expressions of opinion ■ View 2: Tolerance is an essential feature of the values of a democratic society Tolerance involves a paradoxical feature that such tolerance must be extended towards all persons in relation to any opinions held by them Doesn’t involve the idea that any group should be immune from criticism. is bound to be virtually ineffective ● ● ● Freedom of speech can hardly be absolutely unrestricted ○ Example: Laws against defamation which restricts people from making unwarranted and untrue attacks on another’s reputation Most if not all legal systems impose restraints on publications or representations which are considered to be obscene Censorship ● ● ● ● R O AMINA L ETIRAD O R ___________________ ______ ONQUILL O Freedom of speech and press usually implies an absence of initial censorship. and allowing it to be brought to bear upon the governmental organs of the state. but not on any mere administrative discretion Problems: ○ Determining what are the ultimate limits of tolerance which may be required by the established value of freedom of speech ■ Question of how far it is permissible to use media of entertainment or broadcasting as a means of propagating doctrines or opinions which may be thought objectionable either by the community or by certain groups of individuals ○ How far a democratic state should be prepared to permit doctrines to be propagated which are themselves aimed at inspiring intolerance against specific groups ■ View 1: Law should only concern itself in such matters with public order.) ● The law generally declines to regard religious groups as being entitled to any special degree of immunity from legal regulation. stamping out more independent forms of journalism ○ Furthermore. ○ English View = non-interventionist ○ U.FreedomA of LaborB NGSIY UENDIA B THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO C ULL O HATT O D E G UIA F G ONACIER ARCIA G UERRERK O HO LAUENGCO M M ARCELO ASIGLAT ○ ● Modern times = developed in relation to the trade union organization of labor ○ After a tumultuous history. sedition. has gradually established itself as one of the supreme values of the modern state ● Emphasis on the need to spread the risks of misfortune among the community as a whole.. wherein a work can freely be published but subject to legal action thereafter ■ Such legal action is dependent on the general law of defamation.e. the dissemination of information has been reduced to what the general public would adhere to easily and thus. etc. and therefore will take action against breaches of the criminal law however religiously inspired they may be ._________________________E. Freedom of Religion ● Earlier ages = Strong tendency of religious stigmatization ● Modern age = Freedom of religious belief is a recognized value in a democratic society ○ Problems: ■ Religious discrimination ■ Religious doctrines conflicting with public order (i.S. Industrial Relations Act 1971) Question: Whether the Government should intervene in industrial relations and to what extent. etc. censorship has a positive aspect ○ One of the dangers in this age of mass media is that tendency for the organs of public opinion to fall increasingly into the hands of a minority ■ Hence.e. obscenity. Freedom from Want and Social Security ● Need to protect everyone. polygamy. etc. but only that it should not be permissible to insult and abuse its members or incite hate towards them In modern times. Scandinavia. not merely against grinding poverty. various controversies arose with the involvement of government in the freedom of labor and trade unions (i. = interventionist to a degree ■ Regular form of compulsory or semi-compulsory arbitral procedure of a judicial or quasi-judicial character What is at stake? = Ability of a group of workers to hold to ransom not only a whole industry but even the whole economic life of the country F. the press has a need to increase circulation which then leads to irresponsible types of journalism H. rather than allowing them simply to affect the particular victim of misfortune ○ Led to further attempts to try and extend the notion of insurance to many of the risks attendant on everyday life ● Value of social security and the belief that one of the purposes of the legal system to ensure this comes into conflict with the generally established principle of civil liability ○ Civil liability – A person is entitled to be paid damages or compensation if he can establish some negligence or other fault on the part of a wrongdoer ■ Idea has been to some extent rejected in the sphere of industrial injuries G.


which is not open to free discussion. or landlords. primarily in the dismantling of the rent system in negligent exercise of such power England since the 1941 War VI. not the individual citizens. ● Rule of Law – imposing those procedural guarantees which have been should be upheld over the lesser freedoms found necessary to ensure what in American constitutional practice is known ○ This logic thus remains to be arbitrary and up to the courts to decide as “due process of law” which freedoms are above others ● Involves all matters concerning: ● What would be necessary in light of this problem is an informed and ○ Independence of the Judiciary educated state.” or those guaranteed by the Constitution. PersonalNGSIY Freedom UENDIA freedomC THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO ULLO HATTO D E G UIA F G ARCI ONACIER A G UERRERK HO O LAUENGCO ● One of the most inherent assumptions in the Rule of Law is that no M M R O ARCELO ASIGLAT AMINA L ETIRAD O R ___________________ ______ ONQUILL O ● which can fall within the ambit of person shall be found liable for a crime they had not committed multiple other freedoms just because they are in some way connected to a group or ● Vital aspect is that people should be free to choose where to reside. paramount adequate basis for an “open” society consideration will be made in favor of the accused hence various rights and VII. what individual that had committed such crime employment to enter. illegal. as well as. what lifestyle to lead. etc. to be free to come and go as they ○ A person shall be answerable only to his own wrongdoing please. though. the acts of his servants acting within the scope of their ○ These type of freedoms depend largely on their economic employment but the explanation for this is that it complies situation. ● For the purpose of protecting human rights. The Rule of Law ○ “Preferred freedoms. lifestyle. those who have more in life will have more freedoms of with public policy this kind ● Public policy in question is that the employer shall be liable for the acts of his ● ISSUE: How far a state is willing to enforce a high standard of economic employee egalitarianism ● Rule of Law also pertains to the exercise of governmental powers ○ Choice of residence – State can go as far as to provide suitable ○ Governments that adhere to the Rule of Law have established homes in suitable locations for the portion of the population that do administrative laws which permit entities to exercise supervisory not share the same prerogative and choice as the wealthier powers over the administrative and quasi-judicial functions of the members. ○ Group liability was familiar in the earlier phases of legal development ○ Personal freedom necessitates that the legislators do not make laws but has since faded in modern legislation that compel people in terms of their freedoms of employment. a man may be answerable for residence. ■ But in terms of civil liability. SJ) . it must be understood that certain freedoms are above other freedoms in terms of a hierarchy J. as well as._________________________AEncompass B ingB I. protecting persons in relation to tenancies executive branch occupied by them ■ There are issues arising from suits brought by citizens ■ The latter situation does conflict. etc. with the rights of against the state sometimes due to improper. would not form an ● Considering the issue is between an individual and the state. 2 requisites are necessary: PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER. hence the absence of suits from individuals on in a criminal prohibition prior to the commission of the crime (nona state and that customary international law imposes very few restraints on the retroactivity of penal laws) sovereignty of a state. a high measure of free discussion in all organs ○ Speedy and fair trial of an accused of opinion which society can deploy ○ Providing adequate safeguards regarding arrest and detention ○ A dogmatically established canon of universally accepted standards ○ Providing legal aid of conduct. Human Rights and Their International Protection premises govern this concept ○ Right of the accused against self-incrimination ● Reluctance of states to ensure that the rights of either their citizens or aliens ○ That the agent advocating the accused must be free and within their territory is upheld has led to the attempts at establishing a supraindependent and not under state control national authority which can take steps to ensure such rights are upheld and ■ But the agent’s duty is to the administration of justice and protected not just to his client ● Customary international law contributed in the sense that it recognizes only the ○ No person shall be found guilty of an offense which is not laid down state. The Problem of Conflicting Values ○ Freedom to travel – there is great state involvement in this freedom such as the issuance of passports to permit or deny an individual ● It is evident that the various freedoms that all men possess is capable of from entering or leaving their country conflicting with other freedoms ■ States also have the right to expel aliens from their territory● In assessing this pressing issue.

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this power is derived from the State o France ƒ New constitutions have been introduced over the past centuries ƒ It is difficult when sovereignty is constantly being transferred depending on their situation for a certain period. ultimately. the national state was recognized as the complete master of its own system of positive law x The concept of the state as the ultimate sovereign is not consistently applied in all countries when it comes to internal laws o England ƒ Queen in Parliament as possessor of legal sovereignty ƒ State Æ more of a general notion than a sovereign x A personification of ramifications of legal authority and although some parts of such authority may be reposed in some particular person or body. o Papacy ƒ Supreme legislator for all Christendom during the Dark Ages when secular law lapsed into a mass of local customs and emperors and kings prioritized expansion of their power o Independent Nation States ƒ Most important source of the modern concept of sovereignty ƒ Arose when the "unity" of European Christendom was broken by the Renaissance and Reformation Sovereignty and the State x Newly independent states retained the idea that sovereignty is identical as the king / body x However. there is still the question of enforcement CHAPTER 8: LAW. ƒ They found permanence in wielding sovereignty to the State itself Internal and External Sovereignty x The idea of unity of the national state is most potent in the international sphere x Two (2) aspects of sovereignty o Internal . SOVEREIGNTY AND THE STATE Origins of Sovereignty x Modern idea of sovereignty Æ associated with the supreme power of lawmaking o The sovereign is that person / body which is the supreme legislator o Ultimate legal authority lies in his power to change the law.THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO _________________________ANGSIY BUENDIA BULLO CHATTO DE GUIA FONACIER GARCIA GUERRERO KHO LAUENGCO MARCELO MASIGLAT OAMINAL RETIRADO RONQUILLO _________________________ ● 1. System of judicial machinery whereby issues involving alleged infringement of those rights can be investigated But. later on. x Three (3) main historical sources of the concept of sovereignty o Roman Emperor ƒ His will had the force of law ƒ Applied in the consolidation of power and independence by several rulers of the national European States during th th the 15 and 16 c. A clearly laid down code of established human rights accepted by all civilized states 2.the supreme domestic legislator o External . it was recognized that every independent country is a self-supporting legal system called the State o Ultimate sovereignty resides in the State itself General theory of Law and Sovereignty x Jean Bodin (16th century) o It was the nature of every independent state to possess a supreme legislative power o Supreme in two (2) ways ƒ Acknowledged no superior ƒ Authority was completely unfettered x Effect of natural law Æ previously acknowledged to override law-making power x After increasing secularization.the state does not have much power to change the law but has total freedom to act as he pleases ƒ International relations: state sovereignty means each state was entirely free to regulate its relations with other states ƒ There is an absence of an acknowledged superior authority x Development of natural law theory o Arose from the "unhappy state of lawlessness" among independent nations .


the federal constitution cannot be amended without the consent of a particular body x Unlimited sovereignty is not applicable to a federal constitution o Bill of Rights controls and limits legislation o Courts have the power to treat legislation as void if contrary to the o basic norms of the Constitution Restraints may be considered by Austin as positive morality but courts and the community treat them as part of the legal system that is entitled to reverence Constitutional Changes What happens if the Constitution changes and power is transferred from one body to another? Would such transfer to final and irrevocable? Or would the abdicating sovereign retain authority and be able to reassume when it pleases? x This is the realm of power politics PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER. there may still be different rules for the exercise of their functions o These rules are essential in establishing which acts of sovereignty were to be exercised o Rules give validity to the activities of the body. Federal Constitutions x Legislative power is distributed between a central legislature and a number of provincial legislatures o Ex.power is divided between the federal and state organs x Where does ultimate sovereignty lie in this case? o Austin claims to find it among the combined electorates of the o state legislature It is the ultimate sovereign who has the power to amend the constitution ƒ However. K HO LAUENGCO M ARCEL O M ASIGLA T O R AMINAL R ETIRAD O __________________ _______ ONQUILL O The Unity and Illimitability of Sovereignty x Austin’s 2 essential attributes of the sovereign o Indivisibility/unity .S. Law as the Command of the Sovereign x John Austin . and were directly governed by natural law ƒ While nations were shaking off natural law in the internal sphere.________________________ B _A NGSI Y B UENDI A THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO C ULL O HATT O D E G UIA F G ONACIER ARCI A G UERRER O o Theory: nations. U. these laws are what Austin calls positive morality.this circularity is a deliberate feature of the system ƒ Legal theory must be based on facts of legal life x Legal systems reflect the vicious cycle. in reality. were in a state of nature towards one another. they were still subjected to it externally ƒ Attempts were made to explain the rules of natural law and from these rules. .commonly associated with the command theory of law and legal positivism x Positivist thought o Autonomy of law as a system of positive norms whose validity o can be determined within the legal system itself -giver Rules are laid down by some identifiable human law x Command (imperative) theory of law o Law is what the sovereign commands o Nothing can be law if it is not commanded by the sovereign ƒ Legal validity can be determined by ascertaining whether the norm in question can be shown to have been laid down by the sovereign o How do we identify the sovereign? Where does it derive validity? ƒ There is a vicious cycle in answering these questions x Sovereignty is invoked to validate law but law is also invoked to create the sovereign ƒ Max Weber . Sovereignty in England is attributed to the King. like individuals before civil society came into being. x Justice Holmes – “The life of law is not logic but experience” Who is the Sovereign? Austin's Theory x The problem of sovereignty is about determining the ultimate source of x power Sovereignty is defined as the power in the state which commanded habitual obedience and which did not yield to any other power o It is based on the sociological fact of power itself x How is the source of actual power to be investigated? How does it converted into legal terms to provide a foundation for the legal system? o An essential mark of an independent State is a sovereign power to whom unqualified allegiance is paid and was subject to no other power x How was the actual possession of power to be located? o Constitutional rules give clues to the source of actual power ƒ Ex. such procedure was successfully done only twice ƒ More often. the House of Lords and the electors. SJ) . Austin also claims that constitutional laws dealing with the structure of the sovereign power are not really legal because sovereignty is determined by obedience o Instead.division of sovereigns would mean also mean division of allegiances ƒ Sovereign must be a unity o Illimitability .limitations are a result of an external power x England o Unity of the sovereignty of parliament has long been accepted o Repeals in laws and statutes reflects parliament’s inability to bind itself x However. they can be ignored x Even if there must be unity of sovereignty. o Theoretically. the general principles of international law were derived.

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William called to replace James II after the latter’s expulsion x Austinian conception of habitual obedience to A rather than B is clearly relevant as explaining how legal authority can pass from one to the other regardless of the legal regulations in operation o In an operative legal system. Force and Sanctions x However. it is of a higher level than national law and must bind and limit even the sovereigns of the nation o states . SJ) 28 . Civil offenses . x What happens if a country passes an act which directly contravenes international law? o Two (2) approaches ƒ To treat international law as part of its own law and directly binding x International law may abrogate domestic laws ƒ To regard international law as an intruder x It is subordinate to national law although it may guide interpretation of local law o Whatever approach the court may adopt.e. Cromwellian regime superseding the monarchy.court may sell a debtor’s property for failure to pay his debts. How does the Parliament Act (depriving the House of Lords veto power) fit into the structure of the legal system? Why does Parliament impose limits on its power to legislate? How can judges invalidate legislation? o In this realm. the constitutional rules will be back in place. They are permissive and simply lay down conditions in order to achieve the purpose of the law o Ex. Sovereignty and the International Sphere x International law poses a problem for those who believe in the absolute character of national sovereignty o If international law does law is always subordinate to reasons of state x Defense of international law: it is an auto-limitation o It operates by the consent of states who have long agreed to hold the customary principles of international law such as observance of treaties x Austin held that law is the command of the sovereign. power takes ascendancy over law to a degree where it is impossible to disregard actual factors of power and obedience in trying to determine legal validity ƒ law is not really law but positive morality Austin o Hegel . there needs to be a high degree of obedience to the existing system o During civil war and revolution.i. With this comes the power to enforce penalties for failure to obey x Sanctions in law have a very wide meaning o Not just penalties for punishment o It is any coercive process by which the law seeks to impose its o will in the last resort to comply with a legal order or judgment Ex. immunity of diplomats ƒ Treaty rules . when this stage passed. it is no longer necessary to look for the ultimate de facto power because by then. transactions. Austin seems mistaken in insisting upon a sanction being annexed to every command of the sovereign for it to constitute a positive legal duty o No legal system that has prevailed and is likely to continue can function unless it is ultimately rooted in a background of coercive machinery which can enforce compliance with its rules and decrees o If suffices that sanctionless duties fit into the whole pattern of norms recognized as possessing legal attributes for it to merit treatment as a specifically legal norm State. there is a need of a legal theory which will account for constitutional patterns of well-ordered states and their legal relations o Ex.THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO _________________________ANGSIY BUENDIA BULLO CHATTO DE GUIA FONACIER GARCIA GUERRERO KHO LAUENGCO MARCELO MASIGLAT OAMINAL RETIRADO RONQUILLO _________________________ x To understand legal systems. Power. the State may still be liable for the breach of international law x Which leads to the question: how can a national sovereign state be subordinated to a system of international legal rules without loss of its independent sovereignty? does not create a higher state entity. a declaration of nullity may still be considered as a sanction since no one can gain rights from it. Non-criminal offenses – (ex. Failure to comply with an injunction) Court may imprison an offender o Ex. It is simply o International law recognizing legal rules which bind the states themselves o Two (2) types of international rules ƒ Customary . it may be necessary to interpret legal systems in terms of actual obedience to the prevailing power ƒ Transitional stage where law and power are largely o merged However. o Non-compliance does not impose a penalty but only makes such acts void o Although. etc.i. international copyright and postal arrangements o Failure to follow any of the two (2) is a breach of international o law This does not mean that the rule of international law will be automatically recognized in the courts of the country concerned PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER.e. in a general sense. x There are also laws which have no penalty but still impose legal rules . formalities of a will.

the basic norm or ultimate premise of the whole system ƒ Elephant that supports the world. while lacking some features of domestic law (compulsory adjudication and enforcement) possesses many characteristics closely analogous to a national legal system o Vital difference between the two systems is the nature of subjects of two systems ƒ States vs. o system Hierarchy of norms . you cannot ask what supports this elephant ƒ Kelsen’s main argument .series of norms laid on at various levels of generality and subordination ƒ Highest norms are most general and abstract Grundnorm . or lessen the force of these international obligations vis-à-vis other states o However. Lawyers will realize that change has penetrated their law and parliament could no longer legislate in defiance of overriding matters like the EEC Treaty. abrogate. states may still disregard this set up o However. o They have a Court of Justice ƒ Final court of appeals on matters regarding the treaty ƒ Held in a number of decisions that community law prevails over national legislation x In theory. the breach of international law remains x International law has no coercive procedure (has not yet attained stage of regular adjudication and enforcement of disputes) x Yet there is universal acceptance of the fact that an international legal duty imposes a duty comparable to that of a rule of domestic law o International law. etc. restrictive trade practices. national sovereign retains domestic sovereignty and may legislate or act in disregard of international obligation o But it cannot any normative system. the practical result is for national states to place their national law in line with the requirements of the treaty x England Æ it is difficult to conceive any international treaty abrogating national law because parliamentary sovereignty has been traditionally practiced for years o If Parliament passes an act contrary to the Court. this may eventually become increasingly unrealistic.THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO _________________________ANGSIY BUENDIA BULLO CHATTO DE GUIA FONACIER GARCIA GUERRERO KHO LAUENGCO MARCELO MASIGLAT OAMINAL RETIRADO RONQUILLO _________________________ ƒ Whatever the domestic law. establishment of commercial companies. Æ ultimate constitutional norms are those actually contained in the latest amended version of the written constitution itself Basic Norm of International Law x Two (2) 2 views st o 1 Æ each nation has its own ultimate norm and treats international law as valid only if it fits their national law nd o 2 Æ there is a monistic system where the basic norm of every state is a rule imposing obedience to international law ƒ This system is not only desirable but is in fact operative ƒ While the coercive system in international law is not as effective as that of national law. free movement of workers. there must come a point beyond which you cannot go because you have come to the outer edge of the whole system How do we decide what is the basic norm? st ƒ Go back to the 1 Constitution (either as a result of revolution or for a territory not previously possessing a constitution) st ƒ The basic norm is the supposition that the 1 Constitution is valid and should be obeyed x England Æ ultimate constitutional norm is the rule imposing the sovereignty of Parliament x U. it would still follow parliament. individuals x Within its own internal sphere.rules or standards of conduct forming part of a unified o o Treaty of Rome and National Sovereignty x Treaty of Rome . this does not deprive it of its legal status PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER. Kelsen’s Pure Theory of Law Kelsen x Many features similar with Austin x Emphasized that law is entirely autonomous and self-contained o Its validity must be based on legal terms and not morals x Law is concerned not with facts of human life but with norms o Norms .S. SJ) 29 .established the European Economic Community (EEC) x Features of the EEC o Permanent arrangement with no provision for withdrawal o Set up various institutions (Council and Commission) with wide range of powers ƒ They make decisions and lay down rules binding on all members ƒ Includes laws on tariffs.

argues that it was wrong for the legislature to limit the work hours in mines/factories because workers are free to accept or reject such conditions ○ Liberty of bargaining = essence of an advanced society SOCIETY AS AN EMERGENT ENTITY ● Rousseau ○ ● ● The unity of society in his conception of the 'general will'. ■ Rejected by Kelsen ○ Kelsen ■ Seeks to disassociate legal questions from underlying social problems and relations to which legal norms may be applied ■ Legal science is concerned solely with formal pattern of rules existing in a realm distinct from that of the facts for human problems ■ He does not deny the existence of such facts but asserts that they are totally separated from law INDIVIDUALISM AND COLLECTIVISM ● 18th & 19th centuries . an emergent entity distinct from that of the individual wills of the members of society Edmund Burke ○ Emphasized the traditional and historical roots of the social organism ○ Repudiated the interpretation of the national state in terms of a Hegel partnership in a commercial venture ○ ○ ● Apostle of freedom Provided the philosophical groundwork for the pattern of society as a metaphysical entity both distinct from and superior to the individuals ○ who composed it Linked to historicism which envisaged the development of human history as following a preordained pattern ○ The 'idea' was more real than the world of physical sensations ○ The 'idea' governing human history was that of 'reason' ○ Idea of reason = national state ■ Citizens are subordinated to the aims of the state ■ Insistent that this type of state = highest manifestation of ■ human culture and freedom Conflict of national states = essential feature of human progress and freedom ○ Denied the existence of natural law ○ State law itself provided the standard of morality Nazism and Fascism ○ Subscribed to the idea of the nation-state as an emergent entity ■ Embodying highest reality attainable by man ■ And where the individual and the dictates of his private conscience and morality were utterly subordinated ○ Nietzsche ■ Assert that the law of the state was the highest morality . individualist and formal in character ○ Became a scope for disagreements ■ Locke .____________________ _____A Does B NGSI Y THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO B UENDI A ULL O C HATT O D E G UIA F G ONACIER ARCIA G UERRER K HO O LAUENGCO Kelsen Provide a Solution to the Problems of Sovereignty? x Kelsen’s approach is more consistent and logical than Austin’s but it is not without difficulty o Right assertion Æ legal validity cannot be reposed on purely de like obedience. ● ● CHAPTER 9: LAW AND SOCIETY INTRODUCTION ● Natural-law schools and positivists . ■ The role of sanctions as involving a threat of the infliction of pain directed to the individual and thereby inducing the state of obedience -> fundamental presupposition of all law.argued that absolute sovereignty was transferred to the ruler ● Utilitarian basis of positivism ○ Relied in a rational choice of ends directed to human happiness and a psychological framework of human nature ○ Austin ■ Leant heavily on this psychological approach.heavily influenced by an individualist approach to human society ● Social Contract Theory ○ Formed an indispensable link in the structure of natural-law ideology ○ Maintained that society was formed by agreement of individuals who composed it ○ Natural law formed the basis not only of positive law but of society itself ○ This theory was rationalist.individualist though assumed a more distinctly economic pattern M M ARCELO ASIGLA T O AMINA L R ETIRAD O R ___________________ ______ ONQUILL O Individualism developed into a political and economic slogan in the form of laissez faire: ○ The assumption that law should interfere as little as possible with individual freedom of action ■ Underlay a good deal of legal and social speculation ■ Translated into action via the doctrine of freedom of contract Sir Henry Maine ○ Society had progressed by a movement from status to contract ○ Freedom of individual to make any contract = symbol of a developed and open society ○ It was therefore the policy of law to maintain this freedom ○ His devotees . It must be explained in facto considerations normative terms o Problem Æ he fails to clarify the status of the single basic norm x He throws light on the query as to how fundamental basis of a constitution may be established and effected without revolutionary convulsions.favored the retention of fundamental natural rights ■ Hobbes .


right to be legally protected against the wear and tear of one's job (in contrast to freedom of contract) ● Conflicts of Interests ○ Legal process as a form of social control ○ All conflicting and competing interests are scrutinized. Court may attempt to grasp fundamental legal postulates of its own age iii.composed of a mass of competing 'interests' ● Law stood as a kind of impartial mediator of all these competing needs and claims ○ The real requirement was to relate the legal process to the developing needs of existing society MAX WEBER AND EHRLICH (German writers) ● Weber ○ Emphasized how the modern law of the West had become increasingly institutionalized through the bureaucratization of the modern state ○ The law as a gapless system of legal principles ● Ehrlich M ARCEL O M O ASIGLAT AMINAL R R ETIRAD O ___________________ ______ ONQUILL O ○ 'Living law' . hit-and-miss basis LATER DEVELOPMENTS: LEGAL REALISM IN THE USA PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER. Roscoe Pound ● Saw the law not as a formal system of rules but as a prime method of ordering society ● Society .social norms which governed society ■ Not static but in a continual process of change ■ Ethical values prevalent in society will be reflected in the living law ● Every society had an inner order of the associations of human beings which composed it ● This inner order: ○ Dominated life itself ○ Equivalent to what later anthropologists now call the pattern of a culture ○ Those responsible in developing the legal system must be in close touch with the inner order ROSCOE POUND AND AMERICAN SOCIOLOGY ● Legal process as a form of social engineering ● Problems of our society were largely based on ignorance rather than on inherent human defects ● Every coherent society has a pattern of culture which determines its various ideologies ● Law develops certain fundamental postulates of its own which tend to set the pattern or framework within which law develops ○ New postulates = right to work. law and morality THE ECONOMIC FORCES OF SOCIETY ● Karl Marx ○ Follower of Hegel ○ Introduced to turn Hegel 'right way up' ○ Assert that it was not idea that ruled the world but material forces (economic) ○ Described his method as 'dialectic materialism' ○ Contradictions in the capitalist system -> result in revolutionary upheaval -> emergence of new socialist society ● 2 strands of Marxian thought: ○ Historicist ■ Foretells and period of doom and destruction ○ ■ Man will be reborn in a new era of peace and justice Prophetic ■ Attempt to apply scientific principles to the study of human society ● Marxism made a major contribution to the foundation of legal as well as other forms of sociology THE SCIENCE OF SOCIOLOGY APPLIED TODAY ● Benthamite utilitarianism . accepted or rejectee ○ Courts as the supreme agent of the law in effecting social control ○ 2 problems: i. How the various interests competing for legal recognition could be classified and correlated ● Pound pointed that interests were not static since new situations were constantly creating new needs and claims ii.scientific principles could be applied to studies such as law and criminology ● Comte ○ Invented the new term 'sociology' ○ Man in society was just as capable of being scientifically studied as was any other phenomenon of the natural world RUDOLF VON JHERING ● Exerted a profound influence on the most important sociological jurist of the Anglo-American world. How conflicts between them were resolved by the courts and whether procedures for this purpose could be improved ● Pound realized that the basic need is to have some system of values by which competing interests can be compared and a decision reached as to which is to prevail ● The Process of Evaluation ○ 3 main ways in which this process is effected by courts: i.____________________ _____A B NGSI Y B UENDI A THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO C ULLO HATT O D E G UIA F G ONACIER ARCIA G UERRERK HO O LAUENGCO ■ Law itself was no mere matter of legal formulation ■ The intuitive expression of the dictates were mystically perceived and conveyed by an inspired leader whose intuitions represented the ultimate in truth. Court may trust to its own instinct and judge on a roughand-ready. Court may follow patterns of the past ii. SJ) . compared.

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in a limited form of socialism such as has developed in England ● Rivalry may exist in between commercial and state enterprises ● Marxist ○ The law is merely the means of imposing on the population what the dominant section regards as serving its economic interests ○ Those who administer the law have no other function that to ensure that this purpose is achieved. little effective progress in international law is either probable or even impossible. will depend for its effectiveness in large measure on the extent to which it corresponds to the underlying ‘living law’. these will be manifested in the fabric of the law itself. like any other legal system. ○ The only freedom which is meaningful is one in which the state controls the whole economic machinery THE CONTRASTING IDEOLOGIES OF COMMON LAW AND CIVIL LAW ● Civil Law of the Continent ○ Grown up largely as the work of learned jurists and ideas worked out deductively and systematically in a spirit of rationalism ○ Codified in most countries ● ○ Remains true that the Catholic faith is predominant and that natural-law ideology inspires a good deal of Continental legal thought Common Law ○ Roman law ○ Primarily Prostestant and secularist ○ Steeped I the beliefs of English empiricism ○ Law is a matter of political or practical decision to be distinguished from religion and morality ● Treaty of Rome ○ Document drawn up in accordance with the spirit of the civil law tradition ○ Establishes institutions such as the Court of Justice THE IDEOLOGY OF INTERNATIONAL LAW ● International law. ○ ○ ● Cannot but be a reflection—however partial or imperfect—of the society in which it operates and if that society contains contradictions.Justice Oliver Wendell Holmes ○ The lawyer truly worthy of his salt was one who was not merely acquainted with the set of theoretical rules said to be binding in the courts but who explored all the sociological and psychological factors bearing upon decision making ○ The law is a great social fabric constituted by human behavior ● 2 aspect of American realism ○ Technique of predicting decision-making ○ Attempt to achieve a profounder understanding of the functioning of the legal system ● Legal justice is thus a process of mediation or arbitration rather that adjudication in accordance to fixed rules ○ Sometimes called the justice of "the cadi under the palm tree" THE SCANDINAVIAN REALISTS ● Places emphasis on the need to explore the sociological background of legal rules ● More philosophical than American counterparts ● Karl Olivecrona ○ There are rules of law and that these are in a mysterious way binding upon us is a mere fantasy created in our minds by various superstitions and magical beliefs of the past ○ Law ■ No more than lot of words written on paper ■ No more than a form of psychology ■ But to describe this as mere fiction is to deny an essential feature of man's social heritage IDEOLOGY AND LAW ● Perennial contrast between East and West ○ Modern India ■ There is an ancient civilization based on the traditional standards of Hindu culture ■ Beliefs derived from Hindu religion and its law books require adherence to a rigid caste system ■ This represents Ehrlich’s “living law” of the Hindus LAW IN THE SOVIET UNION ● Ideological conflict between the Communist countries and the West (aka East vs West) à a misconception ● Marxism – a product of Western culture closely linked with the scientific materialism derived from the Renaissance and with the rationalism of the age of Enlightenment ● Soviet Communism ○ characteristic of a collectivist age ○ The state has assumed large-scale responsibilities in the sphere of industrial control and social welfare England ○ There are state enterprises in the fields of transport and fuel ○ State corporations run important channels of communication such as radio and television ○ There is a system of national health and industrial injury insurance ● Whereas in Russia – the state has become the universal controller and provider.emerged rejecting the idea that legal decisions could be based upon rules but claiming that they were essentially a matter of policy and choice ● Rise of philosophy of pragmatism ● Legal Realist . PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER. ● Law ● ○ Important solvent of social conflict Can act as a useful emollient if not a cure to the disorders of our times Without a serious mutual effort to understand the cultural and legal mentalities of other nations.THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO _________________________ANGSIY BUENDIA BULLO CHATTO DE GUIA FONACIER GARCIA GUERRERO KHO LAUENGCO MARCELO MASIGLAT OAMINAL RETIRADO RONQUILLO _________________________ ● 'Free-law' school . SJ) .

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which has then to be restored . for the breach is regarded as disturbing social solidarity. who possesses hardly any formal tribal organization and no system of law enforcement. apart from supernatural retribution or the blood-feud. Therefore. as indeed in our own society. to maintain the social order. as of developed societies. enforcement in the hands of some secular authority (tribe/clan/chieftain/group of elders) or the next-of-kin of the injured person x Custom in Primitive Society x Impossible to differentiate between legal. on the need for reciprocity in social and economic relations o These rules are in a manner similar to our own legal systems. but simply involve regularities of behaviors which are in fact observed o Can and do become converted into customs x Convention o In between customs and habit o Certain observances which. subject to a process of constant adaptation to new situations. and religious norms x The authoritative source of customs will generally be attributed to some divine.________________________ B _A NGSI Y B UENDI A THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO C ULL O HATT O D E G UIA F ONACIERG ARCIA CHAPTER 10: LAW AND CUSTOM G UERRER O K HO LAUENGCO x Law and Custom Compared x In all human societies. and the ultimate sanction of compulsion and even death may be inflicted when the life of the community is endangered x Main objective of sanction is not much to punish the individual offender but to restore the status quo ante. but rather. or supernatural powers. Habit and Convention Customary laws (Customs) o Not just mere habit or convention o Socially obligatory element Æ characteristic of customary observance o Norms operating in less developed societies o Sense of obligation which arises because the individual recognizes that the doing of a certain act is imposed upon him by reason of the existence of a given legal. social. moral. we always to find sets of norms regulating the conduct of their members inter se and regarded as binding upon them M M ARCELO ASIGLAT o AMINA L ETIRAD O R ___________________ ______ ONQUILL O Fustel de Coulange and Durkheim Æ importance of ancestor-worship in molding social institutions and creating social solidary BUT not impossible to differentiate between religious and secular rules direct o Religious rules Æviolations of which draw upon the offender o Custom. the only sanction. rests on coercive sanctions. often believed to be the ancestral founders of the tribe itself x First major misconception: in early society customs was completely rigid and unchanging. and the individual may largely please himself whether he conforms or not x Normative Æ custom and convention (establish rules of conduct for compliance) vs. or moral norm o May result from deliberate innovations instituted by the ruling class or the example of some authoritative or highly reverenced personage in a community x Habit o Course of conduct which we regularly. and that the primitive man was born into a helpless condition of total conformity to tribal customs. pursue but without any sense of obligation or compulsion to do so o They are not regarded as socially compulsive o Do not refer to or depend on norms. just personal idiosyncrasy) O R punishment at the hands of supernatural powers Secular rules Æ regulate social and economic organization of community. may be that of shaming a defaulter into conformity ƒ In more serious cases. may nevertheless be regarded as proper modes of behavior which people are expected to carry out and such omissions are accordingly tolerated o While particular individuals may feel themselves bound to observe it. habit (no norms. semi-divine. it is not regarded as generally binding. for customs were self-enforcing and any occasional violation could be left to the supernatural powers o All societies seem to have some form of legally controlled sanctions for punishing breaches of the rules o Malinowski: The working of primitive. (The group rather than the individual was the only unit of the social order) o Malinowski: rules of a primitive society derive not from the dark beliefs in and fear of the supernatural. though not necessarily invariably. socially approved force may be applied. while not regarded as fully obligatory. old rule being re-interpreted and new rules being from time to time created x Second major misconception: primitive man was caught up like a fly in a web of inherited customs and that so great was the fear of the forces of religion and magic that violation of custom by an individual offender was virtually unthinkable. that is. though it may be the feeling or need for reciprocity that accounts for its effective functioning x Form and effectiveness which sanctions may take will depend upon how highly the tribal institutions are developed o In a very underdeveloped state of society. no sanctions were really necessary in such a society.


but simply that there is an absence of centralized government The Absence of Legal Machinery in Primitive Society x Primitive law possess a flexibility analogous to developed law in its ability to adjust to new conditions x New customs or interpretation DO NOT derive its authority from a formal legislative and constitutional power vested in some person or body. and executive organ) It constitutes a binding normative system relying for enforcement on self-help remedies.THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO _________________________ANGSIY BUENDIA BULLO CHATTO DE GUIA FONACIER GARCIA GUERRERO KHO LAUENGCO MARCELO MASIGLAT OAMINAL RETIRADO RONQUILLO _________________________ x Vital contrast between primitive customs and developed law is not that the former lacks the substantive features of law. SJ) . and such so-called authority as was retained by the king was extremely weak and virtually unenforceable x Forces which tended slowly to offset the anarchic features of feudal Europe PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER. legislation being regarded as altogether exceptional and resting. but lacks the centralized organs which are the features of developed laws Governs individuals Law between and governing the conduct of national states and those states are for the most part highly developed and technologically equipped communities Whole problem of enforcement when whole nations have to be coerced Customary Law in Archaic and Feudal Societies x It is generally recognized that there is a legislative power of a somewhat indeterminate character vested somewhere in the community x The basis of the law still remains customary. the law tended to break up into a vast congeries of local customary laws administered by the feudal lords in their own local courts. legal justice consisted of an attempt to harmonize the interests of the parties in accordance with the spirit of universal harmony. reliability. recognition will be given to it because of the reverence felt for the chieftain or the elders. or that it is unsupported by sanctions. some parts of which are gradually embodied in written code x These codes are completely secular and do not rely upon divine origin or inspiration x The slow development of feudalism out of the social economic disorders of the Dark Ages led to the breakdown of central government A man’s legal status depending upon his tenure of land and his relation to his feudal overlord from whom he had that land x In this state of affairs. then at least upon divine inspiration or the approval of the gods x This law naturally was not a systematic code in the modern sense but enacted a number of miscellaneous matter of which public knowledge was required or clarification of the ancient custom was sought x Much of the law remained customary and unwritten Customary Law in China x Chinese regarded the state of the world as a kind of harmony between various tension or forces x Customary norms prevailed in China and in some respects perhaps more authoritatively x In the realm of law-disputes. and the way in which these reflect the physical environment and the cultural circumstances of the societies in question ƒ Society has a pattern of legal norms directed to maintaining a stable order confirming with its basic postulates ƒ The success of a society in maintaining such stability will depend upon the degree to which its basic ideology commands general assent Primitive Law and International Law Compared PRIMITIVE LAW INTERNATIONAL LAW Possess many of the distinct attributes of law while lacking the vital central organs of law and government (legislator. or because these have invoked the spirit of the tribal ancestors or some other supernatural force. or possibly even because the decision or ruling appears to the community as being eminently just and reasonable x In a society with no records. the operative custom of the tribe must depend upon the accuracy. if not on direct divine interposition. and honesty of the memories of those in whom it is enshrined o The fallibility of human memory alone must account for a good deal of gradual erosion of and accretion to the body of customary law x Lack of established judicial tribunals to settle disputes and the absence of centralized machinery for enforcing decisions mean that primitive law is dependent on rather indiscriminate modes of enforcement x Roscoe Pound Æ every human society possess its basic legal ideology or “jural postulates” which form the main though usually implicit presuppositions of its legal systems o Applied by Hoebel to a large variety of primitive societies Æ the manner in which the postulates of the particular societies are related to the actual legal rules and institutions of that society. of which sufficient intimation had been vouchsafed to human wisdom Medieval Europe x Governed by a body of customary laws. court.

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and indeed may operate even in the absence of any judicial system x In modern English law. to the adhesion of the community as a whole to these practices. none the less it was for the most part incorporated in codes or papal decrees and no one doubted that any part of it could be changed at the will of the Pope himself An indeterminate power of legislation was regarded as vested in the king. the whole of the law was regarded as customary. in quasilegislative fashion. but also that. obtains no support from the customs of this period x In feudal kingdoms. the fact that the court retains the power to declare that any custom is invalid as being unreasonable shows plainly enough. as peculiarly rigid and unbending. so that the ideology injected by them into the law strongly reflected the attitude of that class The Role of Customs in Modern Law x Only a subordinate place can be found for customs as a source of new legal rules x Three (3) main ways in which custom may operate as a direct lawmaking source even in the context of a modern state o Local customs o Constitutional customs o Mercantile customs Local Customs x For a custom to be valid. and possessed a supreme sovereign legislator in the person of the Pope ƒ o o The canon law was doubtless customary in origin and character. are none the less lacking in legal authority o x Regarded as binding politically and perhaps morally. no custom can be regarded as authoritative in itself unless the court has set its judicial seal upon it Constitutional Customs x Function of custom in determining constitutional practices x Conventional constitutional rules which.THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO _________________________ANGSIY BUENDIA BULLO CHATTO DE GUIA FONACIER GARCIA GUERRERO KHO LAUENGCO MARCELO MASIGLAT OAMINAL RETIRADO RONQUILLO _________________________ o Institution of the Catholic Church. but not in law Owe validity not. in the sense of not being enacted. written or unwritten. assisted by his council of magnates of the realm ƒ The king had an ultimate judicial authority to decide legal disputes and by so doing to declare authoritatively the customs of the realm Rise of cities governed by a merchant-class in the later Middle Ages created the need for a more developed commercial law and one of more than merely local application x The idea of customary law. whatever the theory. its own practices and requirements in many types of transaction x Consists of a printed form in standardized terms x Exposed the hollowness of the old-fashioned concept of freedom of contract by legislative provisions designed to protect the imprudent consumer x Devised rather to consolidate and confirm those rules and usages which are best fitted to protect the interests of particular industries or PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER. legislation and judicial decisions being treated as no more than various methods either of declaring old customs or creating new ones Common Law and Customary Laws x A common law for the whole realm was established and local customs were substantially superseded and overrun by the “common custom of the realm” o Not a customary law o The product of a sophisticated legal professional tradition and technique o Unwritten. as with ordinary customary law. including the judges and the legal profession Mercantile Customs x Played a crucial role in the development of commercial law x Operation of commercial contracts constitute so predominant a feature of business relationship sufficiently testifies to the importance of aligning positive mercantile law with the fundamental assumptions upon which different classes of business transactions are based “Standard-form” contracts x Another way in which the commercial community is able to impose. while regarded as in the highest degree obligatory. Not only the subordinate role of customs. SJ) . but rather to their acceptance over many generations by the ruling class. it must be found by the court to be not unreasonable x Old customary law is obligatory in itself and quite independent of judicial sanction or approval. and a highly developed codified system of law to be found in many modern states o Judicial law tends to develop a certain autonomy of its own reflecting rather than the unsophisticated approach that the layman is likely to bring to the rights and wrongs of his daily commerce o The judges were not so much representative of the community as a whole but were drawn from the rather limited ruling and property-owning class. claiming and often achieving an overall supremacy over the Christian kingdom of Western Europe ƒ The canon law of the papacy was a sophisticated written law. but contained in innumerable recorded decisions of the judges o Common law is something of a bridge between genuinely customary laws. with the papacy at its head.

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a collective entity resembling the “general will” of Rousseau and possessing a mysterious collective consciousness whose M ARCEL M O product is not merely language.________________________ B _A suppliers NGSIY B UENDI A THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO C ULL O HATT O DE GUIA F GARCI ONACIER A G UERRERK HO O LAUENGCO . and literature. but all national O ASIGLAT AMINAL R R ETIRAD O __________________ _______ ONQUILL O institutions. including the general customary rule that treaties are to be regarded as legally obligatory x International law is a form of customary law. and its prevailing rules have therefore to be sifted in a highly sophisticated manner Customs and the Historical School x Hegel Æ propounded his doctrine of the State as a living organism. and though we cannot ignore the extent to which that present state is historically conditioned. seeing historical precedents and explanations for law as it has develop in modern societies x Marxist doctrine of law and modern sociological jurisprudence are forward-looking. being concerned with the moulding of the law to enable it to tackle new social problems as these arise The “Volksgeist” x Cardinal weakness in German version of the historical school was its emphasis on the highly dubious conception of the “people” as an identifiable entity. art. and codification was especially despised x Historical approach o Law is not just an abstract set of rules imposed on society but is an integral part of that society deeply rooted in the social and economic order in which it functions and embodying traditional value-systems which confer meaning and purpose upon the given society o Essentially backward-looking. but was a slow organic distillation of the spirit of the particular people (Volksgeist) among which it operated o Such a law must be understood as the product of a long and continuing historical process and its validity depended on the fact that its traditional character was rooted in the popular consciousness and was thus a true national law in accordance with the spirit of the people o Legislation was viewed with great suspicion as an arbitrary interference with the gradual development of historically based customary norms. history must not be used as a strait-jacket to impose traditional attitudes upon the needs of a new age x Herbert Spencer Æ a movement from a rigid status society to a freedomloving society whose relations could be voluntarily established on the basis of contract . and the highest embodiment of human reason x Savigny Æ law was not a deliberately created product of some artificially contrived legislator. including that of law x “Volk” is capable of reference not only to a people but to a nation. and shares with earlier forms of customary law a lack of definition as to the means by which practices and usages are transmuted into legally binding customs x International law is not a law directed to individuals but is a law governing the relations of developed or semi-developed states. an end in itself. a race or a racial group The English Historical School x Sir Henry Maine Æ substituted for the mysticism of the Volksgeist the evolutionist hypothesis of the Darwinians and showed the need of a progressive society to adapt its law to new social requirements o Insisted that earlier ages could only be understood in their own terms and their own historical context o Urged that only legislation and codification could be effective to solve the complex legal problems of the modern state o Although history might increase our understanding of the past and of the present state of the law. rather than to strike a balance between the needs and practices of all concerned x Confer one-sided benefits on those who possess the power and the resources to impose their will on the consumers has posed many new complex problems which are still far from being adequately resolved Custom in International Law x International law is based upon the established and gradually developing customs prevailing between civilized states.