PHILOSOPHY OF LAW

INTRODUCTION

Nomenclatural Distinction

At the outset, a cursory distinction must be made between “Philosophy of Law” and “Legal
Philosophy.”

1. While they both deal with Philosophy and Law, their field of emphasis is different.
Philosophy of law is a branch of philosophy, and therefore deals primarily with philosophy. Legal
Philosophy is a discipline in law, and therefore deals primarily with law. In other words, their
operational base is different – Philosophy of law is within philosophy, whereas Legal Philosophy is
within the legal academy.[1]
2. Consequently, because of the difference in their field of emphasis, it seems that
philosophy of law is broader than legal philosophy. Philosophy is an all-encompassing subject
that may have as its subject matter anything under the sun; thus the so-called philosophy of X,
and philosophy of “law” is just one of the many possible subjects. The philosophical approach is
highly abstract and seeks for the ultimate “whys” and “wherefores.” Legal theory deals specifically
with how institutions and legal processes are legitimized or justified.
3. The distinction, however, is never clear. They overlap in terms of subject and themes.
And in pursuit of a more academic discussion in a post graduate course, it is becomes
unimportant to distinguish philosophy of law and legal philosophy.

Schools of Thought

There are two major contending schools of thought in philosophy of law: Natural Law
Theory and Legal Positivism.

1. From the time of the ancient Greeks until the seventeenth century, natural law was the
only legal theory. In brief, natural law understands law as an “ordinance of reason” and “intimately
connected to morality;” hence law must be “reasonable” and “just” otherwise it is not law.
2. Legal positivism came after, generally contending that the law is only a kind of “social
technology” which does not necessarily have a moral character. Under this theory, what the law
does is regulate the behavior of its subjects and resolves conflict between them.[2] A law exists
not for its moral or rational underpinnings but because of the social mechanisms that promulgate
it.
3. Roughly speaking, the two schools of thought differ in their understanding of philosophy
of law, in that natural law almost makes philosophy of law as a “branch of moral or ethical
philosophy,” while legal positivism takes philosophy of law as the “philosophy of a particular
social institution.”[3]

Natural Law Legal Positivism

 Law and morality are intimately connected. Law and morality are different.

Philosophy of law is a branch of moral Philosophy of law is the philosophy

philosophy. of a particular social institution.

In essence, law is an ordinance of reason. In essence, law is an institutional

construct.

Questions asked in Philosophy of Law

1. Logically, the main question asked in philosophy of law is “what is law?” And since it
could be answered in various ways, contending schools of thought also emerge from it, as seen
above.
2. Other related questions would be – Is law the same as morality? Is it universal or just
man-made? Does it have a specific purpose? Is it for the attainment of justice? Is it for socio-
economic and political equality?
3. From these questions, it could be seen that philosophy of law has a very vast scope. To
limit it therefore, emphasis will be placed upon leading theories only (Natural and Legal
Positivism).

Importance of Studying Philosophy of Law

1. It must be emphasized that the social, moral, and cultural foundations of law, and the
theories which inform and account for them, are no less important than the law’s “black
letter.”[4] A well-entrenched understanding of the printed provisions of law is impossible without
knowing the spirit or philosophy which lies underneath them.
2. Legal theory has a decisive role to play in defining and defending the values and ideals
that sustain our way of life.[5] When laws are threatened of abolition, the defense always takes
recourse in philosophy to justify their existence. Laws are at the heart of every legal institution,
including the state, so that the latter’s legitimacy is anchored on the philosophical justification of
its laws.
3. Philosophy of law is not among the eight bar subjects. But this does not mean that it is
useless in taking the bar exams. Many examinees fail because they lack philosophical aptitude
and legal reasoning. In truth, the foundation of all bar subjects is philosophy. Take for example,
constitutional law and criminal law:
4. Constitutional law, which is under political law, is based on critical liberal philosophies
enunciated in Article II (Declaration of Principles and State Policies) of the 1987 Philippine
Constitution. Understanding the philosophical foundations of political law is necessary to tie up
its numerous details.
5. Criminal law likewise is based on various philosophies and principles. Rationalizing in the
bar demands a succinct understanding of how crimes are defined and penalized according their
underlying philosophies.
6. For example, why should penal laws be liberally interpreted in favor of the accused?
Justice, which is a principal philosophical concept, explains this, in that the disadvantaged (in this
case, the accused) should be given more opportunities than the advantaged (in this case, the
State). Thus, the rule of “pro reo,” which provides that the penal laws should always be construed
and applied in a manner liberal or lenient to the offender. This rule is constantly repeated as the
underlying philosophy in many provisions of the Revised Penal Code.
7. Philippine criminal law system uses four philosophies depending on the circumstances:

(1) Classical or juristic theory which provides that man, who possesses freedom, is punished
for an act or omission willingly, voluntarily, and intelligently performed. Under this
philosophy, man should be adjudged or held accountable for wrongful acts so long as free
will appears unimpaired,[6] so that if one lacks free will and intelligence, he should not be
held criminally liable. This philosophy is so basic it is implied so often in bar exams.

(2) Positivist or Realistic Theory which provides that man is inherently good but his acts or
behavior may be conditioned by his environment. Because of his upbringing, social
environment and associations he may become socially ill or an offender. Thus, under this
philosophy penal laws are meant to “reform” and the penalties are considered “corrective or
curative.” Jails are reformatories and penalties are imposed after an examination of the
circumstances of the offender. Unlike the classical theory which emphasizes on the offense
itself, positivistic theory emphasizes on the offender and not on the offense.

(3) Ecclectic (or mixed) Philosophy which combines good features of classical and positivist
theories. As contended by many legal theorists, the classical theory should be applied to
heinous crimes, whereas the positivist should be applied to socio-economic crimes. The
Philippines generally adapts the eclectic philosophy

(4) Utilitarian Theory which is based on the maxim “greatest happiness for the greatest
number of people.” The fundamental idea behind this philosophy is that the primary
function of punishment in criminal law is to protect the society from potential and actual
wrongdoers.

Approaches in Legal Theory

There are two approaches in explaining law: descriptive and normative.[7]

1. Descriptive legal theory seeks to explain what the law is, and why, and its consequences.
[8] It is about the facts of law. It has three principal types:
2. “Doctrinal” which seeks to elucidate a case based on an “underlying theory”;
3. “Explanatory” which seeks to explain why the law is as it is; and
4. “Consequential” which seeks to discuss the consequences of a certain set of rules.
5. Normative legal theory is concerned with what the law “ought to be.”[9] It is about
legal values. As such, it is closely associated with moral and political theories.
6. It is important to note however that there is no rigid delineation between the two. Often,
one approach leads to another. Utilitarian normative theory, for example, needs a descriptive
account of the consequences of rules, and vice versa.

NATURAL LAW THEORY

Origin of the Natural Law

1. The term “natural law” is misleading. At the outset, it must be made clear that it
does notrefer to the physical laws of nature. Natural law theory originated from ancient Greece as
a moral theory, which tackles the all-important issue of the “good or happy life.” Evidently, it
seeks to explain the nature of morality and not of law. The question, therefore, is how did it
become a theory of law?
2. During the time of the Greeks, they consider morality as field separate and distinct
from religion. For them, a person can be moral even if he does not believe in God. This is
possible by means of reason. Man is capable of thinking, and it is by using his reason that he
comes to understand what is right from what is wrong. He knows, for instance, that killing is
wrong because it is unreasonable and not because God says so. A person therefore learns to act
rightly through his faculty of reason.
3. Since acting rightly necessarily includes others, as one’s act affects another, individual
morality includes politics. Knowing how to act rightly necessarily involves how to deal rightly with
one’s fellow men. Inasmuch as a moral theory involves a rule of conduct, it may also be construed
as law in the broad sense. It is along this line that the moral theory developed into a theory of
law.
4. Aristotle was among the first thinkers who embarked on the Natural Law Theory. The
bridge between “individual morality” and “social life” is encapsulated in his assertion, “man by
nature is a political animal.” This means that it is ingrained in each person the natural tendency to
live in a community because it is only in a community that he becomes truly human – he becomes
civilized, educated, and truly rational. Outside the city (polis) he is just an animal.
5. Also according to Aristotle, man is a rational animal, meaning aside from his “animality”
he also has “rationality,” which puts him over and beyond other animals. Part therefore of the
nature of man is his “reason.” In other words, it is natural for man to reason out. It is along this
context that a moral theory, which is based on reason, is said to be a natural theory. When one
says, “there is something unnatural about this,” what he means is there is
something unreasonable about the thing. So if one acts irrationally, it also means he is acting
unnaturally. It could therefore be said that the essence of law under the natural law theory is its
rationality.
6. At this juncture, the connection of the following concepts must be clear: morality –
reason – law. Morality demands reason. Reason determines the conduct of man. The dictates of
morality and reason constitute a norm of conduct. Morality and reason are the bases of law.
7. It was said earlier that ethics leads to politics. In fact, the ethical treatise of Aristotle was
a preamble to his political treatise. The pursuit of the good life requires a determination of the
ideal society or government. Nowadays, “natural law” is generally taken to mean only that part of
the original moral theory which explains the way that the law, narrowly construed, operates as
part of a broader moral life of individuals.[10] Political institutions, like the states, are
legitimized or justified by the moral theory from which they were drawn. Using the political
institution theorized by Plato (teacher of Aristotle), for instance, the rulers must be wise and
 morally upright. Their authority depends on how they embody the political criteria of wisdom and
morality.
8. Rome carried on the Greek and Hellenistic philosophical tradition, but it was faced with
the problem of relativism, which rejected universal standards. In the ancient world, Rome was the
melting pot of all cultures, beliefs, and races, somewhat analogous to the United States now.
Relativism was particularly dangerous to the Romans because it could prevent them from
formulating workable rules which would uniformly govern everyone within their vast empire. The
varied customs and practices of particular cultures must be replaced by laws recognizing
universal or common nature.[11] The natural law theory as it developed in Rome sought to
explain the common nature of man which is the basis of morality or natural law.
9. The dominant philosophical school in ancient Rome was Stoicism. The stoics emphasized
on the importance of the performance of one’s duty and accorded primacy to reason. According
to them, a person should concern himself only of the things that are within his power, i.e. only
the activities of his soul. He cannot control all other things. Thus, to be rational simply means to
perform one’s duties conscientiously and virtuously because he cannot do otherwise.
10. What resulted from this philosophical activity was the jus gentium, which was a legal
order meant to apply to all persons throughout the Roman Empire. At first, the jus gentium was
applied to foreigners or second class citizens, then eventually it became a superior legal order or
universal application. The rise of jus gentium into a superior law was caused by the need to
provide a universal standard of justice.
11. Critical to understand under the natural law theory, as expounded by the Stoics, is the
Latin maxim “lex injusta non est lex” or “an unjust law is not a law.” If, for example, the Philippine
Congress passes a statute that orders the taking of all farmlands without need of paying the
landowners, then such statute would provide no law at all. It must be pointed out clearly, that an
unjust law (or one that deviates from the principles of morality or natural law) is not even a “bad
law” but rather, it is not a law at all. Natural lawyers are not just evaluating the morality of the
law. For them, if a law is immoral it is not law at all.
12. Positivist thinkers are particularly critical at this Latin maxim. They distinguish law
from morality. They argue that an immoral law, as long as it was passed validly by the
Legislature, is still a law, even though it is a bad law. For them, a law may be wicked or harsh, but
just the same it must be followed because it is still the law. This does not mean that the positivist
lawyers are not critical about the morality of the law. Jeremy Bentham, for instance, a positivist,
was a social reformer, who attacked “bad” laws. Take note, however, that what he attacked was
the “wickedness” of laws and not the “validity” of the laws.
13. Hence, the principal goal of natural lawyers is to establish the connection of law and
morality. The intimate connection of the two should support their claim that an immoral law is
not a law at all. It must be emphasized that as a natural lawyer one does not just evaluate the
morality of a law because even the positivists do it. What a natural lawyer does is to establish the
necessary connection of law and morality so that when a norm is immoral, he could prove that it
is not a law itself.

[1] See William Edmundson, Introduction, “The Blackwell Guide to the Philosophy of Law
and Legal Theory” (ed. by Golding and Edmunson) Blackwell Publishing (2005), p. 1.

[2] Jurisprudence and Legal Theory, University of London External Programme, p. 61.
[3] See ibid.

[4] Raymond Wacks, Philosophy of Law: A Very Short Introduction, Oxford University
Press (2006), p. xiv.

[5] Ibid, p. xvi.

[6] People v. Genosa, September, 2000

[7] As to how law should be understood, it may be natural or positivist. But as to the manner
of studying it, it may be descriptive or normative. Natural law theory and positivist theory
use the two approaches.

[8] Wacks, Ibid.

[9] Ibid.

[10] Jurisprudence and Legal Theory, University of London External Programme, p. 62-63.

[11] See Ibid.