What is Law?

Law as a social institution

Law as a particular type of prescription
Law as the propositions of law

 Law as a social institution

o "Nomization" - imposes order and orders his relations with other. ( he resolves conflict, tames the
world, harnesses its energies and interacts with others in supportive relations of love and
friendship )
nomization has three steps externalization - man projects his concept of order into the world and
structures it accordingly (example in our country the order that we wanted was to have presidential
system of government with bicameral congress and a supreme court objectification - the order projected
becomes part of either personal, social or physical worlds. the imposition of order becomes objective.
(the form of government which projected must be in the right place)
o Internalization - the objective scheme of things structures my thinking (internalizing the things
from the objective of things) this is where we connect ourselves to the two phases of nomization.
we abide by the order we projected and crucial to the objectives which part of what we projected
Dworkin on The Model of Rules (The Interpretivist or Constructivist Theory)

 Ronald Dworkin, Hart’s main critic and successor as chair of Jurisprudence at Oxford, claims that the
law is more than explicitly adopted rules. He argued that a linear paradigm (rule of recognition- rule of
conduct- obligation/right) is too simplistic. Rather, it has merits or principles that can be “interpreted” or
“constructed” by the courts to contribute to its growth.
 It is his position that principles and policies are not extra-legal considerations.
 Principles are not beyond the law but resides in the legal tradition of the community sensed from
precedents, policies, preambles, sources of law, intents and prefaces.
 According to him, jurisprudence assumes an abstract foundation. Judges disagree about the law
because it is not enough to say what the law says or not, but there are correctible issues on what the
law should be based on fundamental principles or values.
 There are two dimensions of legal interpretation. Formal Dimension- looking for logical consistency
between principles and past decisions; and Substantive Dimension- looking for principles that best
“explain” or “justify” the law. It is the integrity of the law that entitles it to our obedience.
 A law is not integral when it is not consistent (formal) and when it goes against substantial rights and
principles (substantive).
 In his book, Taking Rights Seriously, Dworkin emphasized the idea that since a judge has the duty to
reason according to rights, he has no complete discretion to decide a case. Discretion does not
tantamount to license. The exercise of discretion must itself appeal to law and to principles lest it be
ruled arbitrary and capricious.
 The best fit theory posits that since principles and rights are not initially laid down by natural law, the
adjudication of judges constructs such and these in turn, must “best accommodate the community’s
common convictions.
 It gives a caveat, however, that adjudication is not fixed or objective as natural law theorists claim, but
develops through contemporary standing or practice.
 In Law’s Empire, Dworkin made the analogy of a “Chain Model”, where each judge, like a novelist, adds
a new chapter to the law, interpreting and reinterpreting the previous chapters made by former writers,
and developing a plot to come out with the best story, without making the characters unrecognizable.
 The judge can be creative but must keep in mind the coherence and compatibility with legal tradition, and
preserve the integrity of the story.
 In other words, there can be an element of suspense on what the next case will say on an issue, but not
necessarily surprise, since the holding of the case must pass the standards of integrity and best fit.
A Scholastic Treatment on the Nature of Law

 Thomas Aquinas
- It is the purpose of law to regulate behavior, to prescribe what must be done and to determine that in
regard to which man must forbear.
- Law must be “reasonable,” for it is reason that directs a person’s acts.
- The basis for the exclusion of “ex post facto” laws comes from the nature of law as “regulative” of
behavior.
- Defined law as an order of reason promulgated by one who has authority over the community for the
common good.
- Laws are society’s responses to the demands of living in society – responses ultimately directed towards
more humane and humanizing living.

 John Finnis of Natural Law

- Basic values: indemonstrable, but self-evident principles shaping practical reasoning
o Life – self-determination
o Knowledge
o Play – point of engaging in performances
o Aesthetic experiences – beautiful form outside oneself
o Sociability – from harmony to friendship
o Practical reasonableness – good of being able to bring one’s own intelligence to bear effectively
o Religion – relation between the orders of human kind and the orders of the cosmos
- Elements that constitute the notion of justice:
o Other-directedness
o Equality
- Problems relative to the common good:
o Problem of distributive justice
o Problem of commutative justice

 Characteristic of the legal order

- Law brings definition, specificity, clarity and predictability into human interactions, by way of a system of
rules and institutions
- To show that there was a duly authorized institution
- Lays down the conditions under which private individual can modify the application of rules
- Characterized by the working postulate
- Rule of Law:
o When the rules are prospective
o Complied
o Promulgated
o Clear
o Coherent with one another
o Sufficiently stable to allow for conduct
o When the making of rules itself is guided by rules
Habermas: Rationality and Law
I. Introduction
 Jurgen Habermas is a German sociologist and philosopher whose work focuses mainly on the
foundations of social theory and epistemology, democracy and the rule of law.
 He argues that man’s natural ability to reason cannot be discounted in attempting to answer the
philosophical question of “what is law?” Habermas believes that man’s inherent nature of rationality is
one of the more rational arguments in attempting to justify the law’s existence.
 The development of the theory of rationality is Habermas’ primary contribution to philosophy.

II. Preliminary Considerations and Normative Rightness in Validity-claim

 Habermas’ theory of rationality is based on his confidence in the ability of people to make claims, to
challenge and to justify them. He believes that there exists a speech-act dimension, which means that
man is not restricted to the language of the text or speech alone.
 There are three considerations that Fr. Aquino (author of the prescribed book, A Philosophy of Law)
offered in determining the validity-claim of an utterance, using the illocutionary component. There are 3
considerations: truth, sincerity, and normative correctness.
 For instance, in the statement “I am a fan of Lily Collins,” the text itself is the locutionary component.
This could be restated to fully express the entire speech-act of “I am telling you that I am a fan of Lily
Collins.”
 The following then can be inferred: first, that there is truth in the given statement, and in the chance that
someone questions this assertion, the speaker is ready to give his reasons; second, one can validly
question the sincerity of the speaker, in searching for assurance that he indeed is a fan of Lily Collins;
third, normative correctness is questioned, such that it matters whether or not the rules that the speakers
and listeners go by properly confer the information.
 In relation to Habermas’ theory, it is the last consideration that is underscored. For him, there is a natural
relation between every utterance and the existing norms, and it is this natural relation which determines
the validity of claims. But – what will happen to the claim if the norm that the actor is following is
different from the norm of another?
 In answering the question posed, Habermas relies in the rationality of man to settle differences in norms,
criteria and standards. In the justification of his actions, man cites the norm or norms he follows,
influenced by his history and culture. Today, a venue is established precisely to answer the existing
differences in norms.

III. The World of Norms and their Validity

 Habermas claims that speech-acts deal with more than just objects-in-the-world, and he substantiates
this argument with the use of Popper’s “three-worlds” proposal. This includes the world of physical objects
or states; the world of states of consciousness or mental states; and the world of objective contents of
thought. However, for Habermas, the third world can be expanded to become the world of social relations
and institutions.
 It presupposes the existence of a norm, and therefore puts prime in anticipating the decisions on the
receiver of the actions. In short, the validity of an action is governed more by its conformity with the norm,
rather than its effects.
 Moreover, the correctness of normatively regulated actions has two types: subjectively right and
objectively right. It is subjectively right if there is good faith. It is objectively right if the act done is justified
through acceptance by others.
  The acceptance by others of an act is what fuels the discourse and universalization of actions, and
therefore leads to the legitimacy of norms. Fr. Aquino defines the discourse principle as “those action
norms that are valid to which all possibly affected persons could agree as participants in rational
discourse” (i.e. lawmaking/legislation)

IV. The Rule and Role of Law

 According to Fr. Aquino, law is at the very heart of social integration. It establishes certain behavioral
expectations, and does not merely rely on the goodwill of the people.
 Consensus between the two parties is met with difficulty because of differences in their perception of
what constitutes the common good.
 For instance, the constitutional power of the President to suspend the writ of habeas corpus in times of
rebellion and invasion is abhorred by militants, with the presumption that this hampers the inherent
constitutional right to liberty and due process. Certain measures are included in the Constitution to ensure
that this is not exercised negligently. It is in the existence of these differences that the discursive
process can be put to good use.
 In the balance of individual rights and political autonomy, Habermas stresses that it is not necessary to
choose one over the other.
 However, the domain of the law is limited only to the external relation of interactive influences that people
exert on one another. Motives of the people for doing certain kinds of actions are not a concern of the
law. This means that even if a law exists, it cannot compel one to act “rightly”.

V. Habermas and Weber: A Comparison of Theories of Law

 In contrast to the theory of Habermas that the effecting of intended ends is not a concern of law, Weber
posits that the purpose of law is to attain a certain end or purpose. Modern law, for Weber, has been
secularized, and did away with the metaphysical-religious matrix. Because of the loss of a unified world-
view of religion, man lost his freedom because of the advent of polytheism which led to a competition
between the different religions.
 For Habermas, however, he debunks Weber’s statement consistent with his theory of rationality: that the
reason of man sees no polytheism. Validity of claims can still be sought through their justification by good
arguments.
 Modern law, for Habermas, must be situated within the rationality-context of normativity: “that moral
consciousness that has as its characteristic concern normative rightness.” Thus, the question of whether
the law is binding or not rests on the argumentation that draws on norms that ground, and not on its
conformity with moral principles.
VI. Application in the Philippine Context
 Habermas’ theory has been applied by Fr. Aquino to the case of Estrada vs. Desierto and Estrada vs.
Macapagal-Arroyo in demonstrating an issue in legitimacy and legitimation. Mr. Justice Reynato Puno,
the ponencia of the aforementioned cases, delivered an opinion consistent with that of Habermas’ theory
when he wrote that “rights in a democracy are not decided by the mob whose judgment is dictated
by rage and not by reason. Nor are rights necessarily resolved by the “power of number,” for in
a democracy, the dogmatism of the majority is not and should never be the definition of the rule
of law.”
 The rule of law is not therefore simply adjudged by the number of people adhering to it, but should be
particularly dictated by reasonable people who are not overcome by their rage in establishing a
specific norm.
 Clearly, the Supreme Court in this case differentiated EDSA I from EDSA II, such that the former involved
a political question, while the latter, a justiciable question. This has its basis on the extra-constitutional,
and therefore political, character of the EDSA People Power I, while in EDSA People Power II, the people
merely exercised their constitutional right to freedom of speech of assembly.