READINGS IN LEGAL PHILOSOPHY AND THEORY

CHAPTER 1 INTRODUCTORY CHAPTER
DEFINITION, NATURE AND FUNCTION Philosophy is taken from the Greek words, Philos and Logos, which means “love of wisdom”. Philosophy is the study of the universe that seeks to know the truth and rational explanation of anything. Philosophy of Law is that branch of philosophy which deals with the wisdom of law. It studies the nature of law with particular reference to the origin and end of law, and all the principles that govern its formulation. It is part of practical philosophy. The object of philosophy of law is the study of law in universal sense, as law can also be studied as to its particular points in which the object is Juridical Science or Jurisprudence. Parts of the system of Juridical Science are: 1. Public Law 2. Private Law Parts 1. 2. 3. 4. 5. of Public Law are: Constitutional Law Administrative Law Penal Law Procedural Law International Law

Parts of Private Law are: 1. Civil Law 2. Commercial Law

3. Those that govern relationships among individuals or juridical entities. Juridical Science can only inform the people of the law among certain people in a given period, answering only the uestion of what is established by law of a certain system (quid juris). Philosophy of law, however, transcends the competence of each individual juridical science. It considers the essential elements which are common to all juridical systems (Kant). According to Giorgio del Vecchio, Philosophy of Law “is the course of study which defined law in its logical universality, seeks its origins and general characteristics of its historical development and evaluates it according to the ideal of justice drawn from pure reason. FUNCTION OF PHILOSOPHY OF LAW Philosophy of law is a quest of law which appeals to reason to obtain justice. One function of philosophy therefore is to formulate law that is reasonably acceptable to the people to whom it is addressed. Philosophy of law therefore is opposed to tyranny. The practical function of philosophy is that it teaches and prepares for the positive recognition of the juridical ideal.

CHAPTER II HISTORY OF PHILOSOPHY OF LAW

Every branch of knowledge is better understood by knowing its history. History of Philosophy is a means of study and research which helps in the acquisition of regarding knowledge philosophies advocated by different philosophers in the past. It is a study of how philosophers meditated upon the problems of law and justice. Philosophy in the past has been intermingled with Theology, Morals, and Politics. THE PHILOSOPHY OF ANCIENT GREECE The general history of Legal Philosophy started with the ancient Greek philosophers Socrates, Plato, and Aristotle. In the 15th century, the Sophists denied the existence of absolute justice. Law to them is relative. Plato in his Dialogue disputed the Sophists. Socrates (469-399 BC) believed in a higher justice for the validity of which it is necessary that there is a positive sanction or a written formulation. Obedience to the law of the state is a duty. Socrates in this way gave the first indication of the idealistic philosophical system. Plato (427-347 BC), a disciple of Socrates, in his two dialogues, The Republic and The Laws, presented the ideal concept of the State as “the most perfect unit”. The State dominates all human activity and must promote good in any form. Justice is achieved through the harmonious relation between the various parts of the State. Aristotle (384-322 BC), a disciple of Plato, in his Nichomachean Ethics, said that all supreme good is happiness, the product of virtue. The State regulates the lives of the citizens by means of laws. The content of laws is justice as is applied in various ways. Kinds of justice according to Aristotle: 1. Distributive justice – applied in giving honors and respects 2. Connective and equalizing or called rectifying justice – applied to voluntary contractual relationship. THE ANCIENT ROMAN JURISTS The Roman excelled the codification of law but the philosophical basis derived from the Greeks.

Accepting Aristotle’s theory of being good in political society. The Religious Reformation resulted in the withdrawal of religious leaders from the authority of the Church. The Church asserts itself as an autonomous authority above the State. came about to overcome the long period of excessive dogmatism. equality.Cicero said that law is not a product of choice but is given by nature. CHAPTER III . a rebirth that started in the 14th century. THE RENAISSANCE The Renaissance. The influence of Christianity later became profound upon politics and jurisprudence. The State is concerned only to earthly things while the Church. Christianity said that the good goal of the individual is not only on civil life but eternal happiness which can be obtained through submission to the Divine will. In Renaissance. moral law world exists even if there is no God. THE PHILOSOPHY OF THE MEDIEVAL ERA – THE INFLUENCE OF CHRISTIANITY Christianity as an advocate of liberty. autonomy and freedom of investigation were awakened. law is something that is presented by reason not by revelation. Natural. with those that are eternal. Modifying the Greek and Latin philosophies that the individual’s supreme mission is to be a good citizen of the State. putting together in a systematic form the rules and practices. Equity and natural law are factors in an ideal law. and the unity of the human family through divine law became a challenge to the established political order. There is eternal law which is an expression of universal reason. The discovery of the New World and the invention of printing press permitted the propagation of new ideas. The contribution of the Romans to jurisprudence is the formulation of codes.

With progress of civilization. inseparably united in nature. For law. as for language. the historical school considered law in direct relationship to the life of the community and thus laid the foundation on which the modern sociological school has built.. and as formerly it existed in the consciousness of the community. Law grows with growth. so that they frequently produce no individual image. it now devolves upon the jurists. LAWS AND LAW BOOKS Requisites of a really good code: Young nations. the kindred consciousness of an inward necessity. and strengthens with the strength of the people.HISTORICAL SCHOOL SAVIGNY. and this very development remains under the same law of inward necessity. OF THE VOCATION OF OUR AGE FOR LEGISLATION AND JURISPRUDENCE ORIGIN OF POSITIVE LAW The law will be found to have already particular faculties and tendencies of an individual people. COMMENTS BY PATON ON SAVIGNY In opposition to the pure science of law. have the clearest perception of their law. as did language. and finally dies away as the nation loses its nationality. in this respect. it is subject to the same movement and development as every other popular tendency. there is no moment of absolute rest. it is true. That which binds them into one whole is the common conviction of the people. and they generally incapable of expressing what is best. as in its earliest stages. How did law came to be? Law evolved. represent the community. by a slow process and. national tendencies become more and more distinct… law perfects its language. but their codes are defective in language and logical skill. who thus. takes a scientific direction.. and only wearing the semblance of distinct attributes to our view. and just as language is a peculiar product of a nation’s .

The contribution of the historical school to the problem of the boundaries of jurisprudence is that law cannot be understood without an appreciation of the social milieu in which it has developed.genius.legislation must accord with the instinctive sense of right or it was doomed to failure. 3. Some customs are not based on an instinctive sense of right in the community as a whole but on the interests of a strong minority. e. so is the law. 4. Hence conscious law reform was to be discouraged.g. others are the result of conscious effort. but the judge must hew the block and make precise the form of law. but the instinctive sense of right possessed by every race. Legislation can succeed only if it is in harmony with the internal convictions of the race to which it is addressed. Savigny encouraged what Pound has termed as “juristic pessimism”. The slow evolution of law was stressed and its intimate connection with the particular characteristics of a people. The creative work of the judge and jurist was treated too lightly. CHAPTER IV SEMINAL CONCEPTS (Philosophical Approach) . The life of a people may supply the rough material. The source of the law is not the command of the sovereign. slavery. Law has been used to plan the future deliberately and not merely to express and order the results of past growth. Imitation plays a greater part than the historical school would admit. While some rules may devlop almost unconsciously. 5. Such is the approach of the historical school. not even the habits of the community. But in Savigny’s particular presentation there were exaggerations of which the historical method must be freed if it is to play its true part: 1. 2. and it naturally led to a distrust of any deliberate attempt to reform the law.

Plato asserted that law was the discovery of true reality. when judgment of society takes the form of a public decision of the state. He therefore concludes that law seeks to be the discovery of reality. asserting that a bad law is a no law. appearing to mean that the moral value of law increases as it approximates the ideal law which exists in the world is reality. Those who know always accept the same views. Plato puts forward the theory that law is an instrument of social control and thus suggests the problem of the end of law. Reason is apprehension of reality. by which he meant that anything has real existence if it has inherent in it the power of being affected or of affecting others. they will not write differently at different times on different matters. He therefore rejected laws that did not incline to the end. and if they are mistaken in what they describe as law. If we see some persons anywhere doing this. Law may not always achieve its ideal of discovering true reality. we can say that they have no knowledge. He held that the end of law was to produce men who were “completely good”. then that law is mere appearance and ought not be accepted to be asserting a distinction between principles and rules. public opinion is true opinion. no society believes that that just can really be unjust. Plato offers another definition of law as the opportionment of reason. no matter how small. and true opinion is discovery of reality. or more precisely. Whoever fails to reach reality. still. it is the true reality with respect to the administration of the state. Socrates adds. fails it find the law.THE REPUBLIC By Plato CLASSICAL NATURAL LAW According to Plato. Was Plato hostile to law? Plato of the Republic preferred the adaptable intelligence of the all-wise autocrat to the impersonality of the rule of . According to Socrates. So what did Plato mean by reality? Plato once tentatively defined reality as power. it has the name law.

there was not a man among us whose natural equipment enabled him both to see what was good for men as members of the community. The wise to dominate 2. his insufficient by himself. The State. It is a whole form of various individuals and solidly built. Upon its rest the duty to promote good in its every form. The power of the State is . Law the generality of it could not always do justice to particular cases. The cause of participation in and submission of the individual to the State is the lack of autarchy. “all power corrupts and absolute power corrupts absolutely”. He asserted that fixed laws are to be preferred to the personal administration of the unscientific ruler which is the type society usually receives. and which absorbs and dominates all. and on seeing it. As Acton puts it. Justice is the virtue par excellence. as distinguish from cross-examination. was perhaps the least likely to lead to the discovery of truth. always to be both able and willing to act for the best. For Plato. The State for Plato is a man on large scale. Heknew well the simple truth. as body is formed of several organs. which together make its life possible. the imperfection of the individual. Both in the individual and in the State. Reason which dominates 2. insofar as it consists in a harmonic relation between the various parts of a whole. there must reign that harmony which is obtained through virtue. as the trial of Socrates had shown him. Three parts or faculties exist in the soul of the individual: 1. sense which obeys Similarly. it is only the State which is a perfect being and sufficient unto itself. therefore. For Plato. Artisans and farmers who must feed it. in the State three classes are distinguished: 1. Courage which acts 3. dominates human activity in all its manifestations. Plato realized that on this earth benevolent dictatorship was a counsel of perfection and that he would better propose a solution which had a possibility of realization: society should fall back upon law as second-best. Warriors to depend the social organisms 3. in the Laws and Statesman. that the debating method of the courtroom. However.law.

aside from two kings. composed later. In the Dialogue Laws. that of free men only. These briefly are the principal concepts formulated by Plato in the Dialogue. no longer sacrificed to the sort of Statism. the personality of man is not adequately recognized. and there appear often an admirable sense of practical experience. but considers instead historical reality.limitless. They are always relative to the problem before him. THE REPUBLIC How much Plato owed to his predecessors? From Solon: Happiness of the state depended upon the faithful observance of sound laws. . and that it was the duty of the good citizen to see that such laws were made. because it does not trace out a pure ideal. COMMENTS ON PLATO BY CAIRNS. ARISTOTLE’S POLITICS Classical Natural Law In the Platonic Minos. a mixed government. when Plato was seventy. To render stronger and closer-knit the political organization. at any rate. The Dialogue Laws. Plato suppresses social entities which are intermediate between the individual and the State. and proposes a sort of synthesis. From Pindar: Law is the lord of all. The authority of the State however remains nevertheless very great and overpowering. Plato shows a greater respect for individual personality. Family and property are conserved. however. Republic. Plato criticizes both monarchy and democracy. By Plato. Just like in Sparta. and the aspect of law which they emphasize constantly shifts in order to permit different consequences to be drawn. his definitions of law are partial. as in Republic. has character different preceding one. From Herodutos: Law is the master. always. there were the Senate and the Ephors.

invested with adequate sanctions. He saw the inherent complexity of legal phenomena. as the embodied of reason. the la itself is a kind of contract. it is clear that Aristotle did not reach any final definition of law. And later. In a clumsy attempt to bring the two ideas together. Aristotle developed a distinction between “constitution” and “laws”: Constitution – the organization of offices in a state. To the extent his works have survived. law then is defined as the common consent of the community. He pointed out that if the state did not pay attention to virtue. the doctrine that legal precepts should have some basis in intelligibility and not be the mere expression of arbitrariness. and what is the end of each community. and proceed the offenders. in men. Aristotle agreed with Plato that legislation should teach virtue. the community became merely an alliance. and determines what is to be the governing body. could be secured if their lives were regulated by a certain intelligence. he thought. it is pointed out that in a democracy the final appeal is to reason. so that whoever disregards or repudiates a contract is repudiating the law itself. regulating action of every kind. Laws – are the rules according to which the magistrates should administer the state. and by a right system. guides along the path of their advantage those who are subject to this rule.In the Rhetoric to Alexander. force. Goodness. Aristotle however said that law was much more than a contract. and so as king. in the same treatise. . A self-governing community is directed along the best path by its public law. and he found no single description of it could embrace its manifold aspects. or custom Presented law as a contract Distinguished law from constitution and defined as the rules in accordance with which court determine cases Pointed out law as a form of order. He therefore suggests that. • • • • • Aristotle thought of law as a rule of conduct for the individual Stressed the ideal reason. in a general sense. law is defined as the common agreement of the state enjoining in writing how men are to act in various matters.

. Happiness takes its origin in virtue. Plato held that legislation should be so framed that it could be incorporated in a manual of instruction for the young. like everything in the Aristotleian system has its end and to Aristotle it was very clear that its task was to make men good. Aristotle held that the law has no power to command obedience except of that habit. or tendencies to do a thing. and material good-fortune is its ordinary equipment. but as a juristic formula it has several defects: • The tasks of law can no more can be caught within the net of a single formula than its numerous and contradictory aspects can be confined within the limits of one definition. THEORY OF LEGISLATION Aristotle’s normative view of the law is clearly apparent in his theory of legislation. capacities for doing a thing. conduct comes under the heading of Quality. • The idea of the end of law is that it breaks down as it is put into practice.Law itself. And to Aristotle. feelings. that of a gentleman. Education also assists in making obedience to law second nature to the citizens. In the doctrine of the categories. passions and emotions prompting us to do a thing. Aristotle defined happiness as an exercise of the powers of life in accordance with the virtue throughout the whole life-time. Aristotle’s definitions satisfy the Platonic conditions for a happy life. prescribing some actions and prohibiting others. That law prescribes certain conduct: that conduct of a brave man. Lagislation is a branch of political science. the highest good is happiness or well-being. that of a template man. and external form or shape. and so with all the other virtues and vices. Habituation is the only method of acquiring that settled tendency to do acts of a certain kind. it issues in pleasure. Virtue is a Quality and Aristotle assumes that the category has four divisions: habits.

and what kind of institutions are suited to what national characteristics. not artificially made but already existing. It is a uniform law. Besides this jus naturale. but is given by nature. though they may very likely sharpen their political intelligence. there exists jus gentium observed by all people which serves as a basis for their mutual relations because it based upon their common needs. immutable and necessary “just” as is proved by testimony taken from the very conscience of man. But those who examine such compilation without possessing a trained faculty cannot be capable of judging them correctly.ought to have his eyes directed to two points – the people and the country.Collections of laws and constitutions may be serviceable to students capable of studying them critically and judging what measures are valuable or the reverse. not subject to change by the action of men. immutable. inborn. The legislator must pay attention to the foreign relations of the state The legislator should not make conquest the aim of the state. Legislator’s state must have a political life. And there is jus civile. a life of intercourse with other states A legislator must make sure that the nation’s arms should be such as enable it to meet its foes in its on territory. According to him. THE ROMAN JURISTS CICERO – DE LEGIBUS . but there is a natural. Cicero’s principal thesis is that Law is not a product of choice. indeed. Law is noted based on arbitrary opinion. unless. Aristotle laid down a series of principles to control and guide the legislative process: • • • • • The legislators he believed were from middle class--. by accident. There is therefore a law of nature. that which is in force for each people in particular.

GENERAL DIVISIONS OF THE METAPHYSICS OF MORAL GENERAL PRELIMINARY CONCEPTIONS DEFINED Nature and Positive Laws – Obligatory Laws for which an external Legislation is possible. even although no example of such action were to be found. or how men act. It is the mind and reason and mind of an intelligent man. nor does Reason give any regard to the Advantage which may accrue to us by acting . Those creatures who have received the gift of reason from Nature have also received right reasons. But Reason commands how we ought to act. the standard by which Justice and Injustice are measured. and the state may be defined as an association or partnership in law. Law is the bond of the society. the obligatories of which can be recognized by Reason a . COMMENTS ON CICERO BY CAIRNS Cicero maintains that nothing can be nobler than the law of the state. they have received Justice also. which is right reason applied to command and prohibition.Law is the highest reason implanted in nature. it cannot be considered a state at all. nor from perception of the course of the world in regard to what happens. Reason when perfected is rightly called wisdom. KANT’S THE PHILOSOPHY OF LAW PROLEGOMENA LAW AND ETHICS General Introduction to the Metaphysics of Morals Laws of morality is not drawn from observation of oneself or of our animal nature. and which Experience could alone actually show. Those External Laws. And if they have received Law. and therefore they have also received the gift of Law. are called generally External Laws. If a state has no law.

WHAT THE SCIENCE OF RIGHT IS? The Science of Right has for its object the Principles of all the Laws which it is possible to promulgate by external legislation… B. is a Practical Law. which are not obligatory without actual External Legislation. comprehends the whole of the conditions under which the voluntary actions of any one Person can be harmonized in reality . Those Laws. are called Positive Laws. which he forms as a Principle for himself on subjective grounds. The relation of his free action to the freedom of action of the other. and search in the pure Reason for the sources of such judgments. It may be rendered by the following formula: “ Act according to a Maxim which can be adopted at the same time as a Universal Law”. again. The Categorical Imperative – The Categorical Imperative only expresses generally what constitutes Obligation. In this reciprocal relation of voluntary actions. conception of Right does not take into consideration the matter the act of Will in so far as the end which any one may have in view in willing it. 3. External and practical relation of one Person to another. by their Actions as facts.priori without an external Legislation. in so far as they can have influence upon each other. is concerned. is called his Maxim. therefore. in order to lay a real foundation for actual positive Legislation. immediately or immediately. are called Natural Laws. INTRODUCTION TO THE SCIENCE OF RIGHT General Definitions and Divisions A. Right. The Rule of the Agent or Actor. Maxims – The Principle which makes a certain action a Duty. WHAT IS RIGHT? All this may remain entirely hidden even from the practical Jurist until he abandon his empirical principles for a time. 2. The conception of Right: 1.

” D. RIGHT IS CONJOINED WITH THE TITLE OR AUTHORITY TO COMPEL Everything that is wrong is a hindrance of the freedom. that law is the notion of purpose. COMMENTS BY PATON ON KANT To define law we must distinguish between form and matter. law belongs to the realm which chooses end and determines Mean. Form is being the complex of universally valid principles presupposed in any legal judgment. or in the maxim on which it proceeds. C. The fundamental basis of law and of just law are. according to universal Laws. Matter is the changing world of social experience which those principles construe legally. According to Stammler. Law exists to coordinate. law itself strives towards justice. the same.with the voluntary actions of every other Person. therefore. according to a universal Law". It exists to bind together the community. Or it can be expressed as “Act externally in such manner that the free exercise of thy Will may be able to co-exist with the Freedom of all others. is such that it can co-exist along with the Freedom of the Will of each and all in action. UNIVERSAL PRINCIPLE OF RIGHT “Every Action is right which in itself. and Compulsion or Constraint of any kind is a hindrance or resistance made to Freedom. it can operate only by unifying all possible acts of men. according to universal Law. . according to a universal Law of Freedom. Rodulf Stammler regards Philosophy of Law as the “theory of those propositions about law which have universal validity”. Since by definition law exists to harmonize the purposes of individuals.

a thing both is and is not when it becomes. We must therefore search for what Hegel calls the unity of opposites. Positive law. This means that it is an effort to apprehend the actual. 3. say Being. This was the dialectic method. The realm of law and the natural world are distinct. is deduced. Most systems do assume that law is complete and exclusive system in itself. We cannot know the truth through the method of either intuitionalism or subjectivism. and which constituted philosophy’s own kind of scientific proof. It is the process by which from the first member of the triad. Becoming. In fact we are forced to take this step according to Hegel because unless we do so. Nothing. Rational is actual and actual is rational. Nothing. 2. Law can exist only if actual society exists. it originates with man. But we are able to at this point to perceive the presence of the member of the triad. So far as jurisprudence is concerned with the truth is nothing new. devoid of all qualities is. one that was peculiar to itself. a second element. This is possible because Being in its completely abstract form. . HEGEL’S THE PHILOSOPHY OF RIGHT Hegel believed that philosophy possessed a logic or method of its own. Philosphy’s problem is to isolate those truths and to exhibit their logical necessity. Philosophy’s concern is with the rational. Points of Stammler’s Theory on Law: 1. we are asserting the paradoxical proposition that Being and Nothing are the same – that a thing is both is in and is not. on the contrary is posited. which proceeds through the development of concept.These principles of just law are based on the doctrines of respect and of participation. In the present case it is found in Becoming. The laws of nature are given and their measure is outside man.

but other laws are improper. rules of positive morality. laws which are not commands are laws improper or properly so called. The divine laws. 2.” It is accomplished through the following: 1. 2. A law metaphorical or figurative and a law imperative and proper are allied by analogy merely. Laws metaphorical or figurative. positive laws (the appropriate matter of jurisprudence) are related in the way of resemblance. He determined the essence or the nature which is common to all laws that are laws properly so called. “the province of jurisprudence determined.CHAPTER V AUSTIN. and the analogy by which they are allied is slender or remote. or the laws of God: that is to say. 4. or positive moral rules. THE PROVINCE OF JURISPRUDENCE DETERMINED Laws proper. Having suggested the principal purpose. or properly so called are commands. laws which are simply and strictly so called. and to laws metaphorical or laws merely metaphorical. some are laws properly so called. Positive Laws: that is to say. Austin distinguished positive laws from the enumerated other kinds. and which form the appropriate matter of general and particular jurisprudence. Positive morality. or by close or remote analogies to the following objects: the laws of God. Laws properly so called. Of positive moral rules. with laws improper by so called. the laws which are set by God to his human creatures. may be aptly divided into the four following kinds: 1. • • The divine laws and positive laws are laws properly so called. 3. and considered as a whole. or merely metaphorical or figurative. • Consequently. positive morality which are set by opinion. And. Austin indicated the following topic: . In the six lectures. Determined the respective characters of the four several kinds into which laws may be aptly divided. Positive moral rules may be styled laws or rules set or imposed by opinion: for they are merely opinions or sentiments held or felt by men in regard to human conduct.

Properly so called the positive laws 3. Properly so called. Austin implied: “sanction” or “enforcement of obedience”. Austin distributed laws or rules into two classes: 1. the nature of the index to the tacit command of the Deity is an all-important object of the science of legislation. “superior and inferior. Properly so called the laws of God 2. it is a fit and important object of the kindred science of jurisprudence. in so far as they are what they ought to be. 2. Laws or rules set by men to men as are not armed with legal sanctions. Improper laws which are remotely analogous to the proper and which. The revealed or express 2.1. 2. then. with the implied or correlative notion of . Positive moral rules distinguishing characters: 1. with such improper laws as are closely analogous to the proper. “duty” or “obligation”. the divine law is the measure or test of positive law and morality: Or law and morality. and other commands of the Deity. positive morality or positive moral rules. Since. to the law of God. with the laws improperly so called. laws metaphorical or figurative. Determining the essence or nature of a law imperative and proper. into two kinds: 1. determines implicitly the notion of sovereignty.” 2. He determined the characters or marks by which the laws of God are distinguished from other laws. He determined the essence or nature which is common to all laws that laws properly so called. By commands. Determining the characters of positive laws. therefore. Austin divided the laws. conform. Unrevealed or tacit According to Austin. Laws properly so called. or are not appropriate matter for general or particular jurisprudence. Laws proper with much improper laws as are closely analogous to the proper are under three classes: 1. Laws or rules as are not positive laws. or are not repugnant. Austin determined implicitly the essence of nature of a command.

independent political society. and 2. which rest upon a slender analogy and are merely metaphorical or figurative. Such is the case when we talk of laws observed by the lower animals. For where intelligence is not. the term law embraces the following objects: 1. Of the laws or rules set by men to men. A law. to a member or members of the independent political society wherein that person or body is sovereign supreme. Austin denoted them by the term positive morality. or natural law. is employed. There are numerous applications of the term law. may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him. is frequently styled positive law. But rejecting the appelation Law of Nature as ambiguous and misleading. As contradistinguished to natural law. Laws set by God to his human creatures. The name morality severs them from positive law. or independent political societies. while the epithet positive disjoins them from the law of God. The whole or a portion of the laws set by God to men is frequently styled the law of nature. are a set of objects frequently but improperly termed laws. Without extension by metaphor or analogy. Every positive law or every law simply and strictly so called is set by a sovereign person. being rules set and enforced by mere opinions or sentiment held or felt by an indeterminate body of men in regard to human conduct. in independent nations. of laws regulating the growth or decay of vegetables… etc. in its literal meaning. or where it is too bounded to take the name of reason. Austin named those laws or rules the Divine Law or the law of God. Closely analogous to human laws of this second class. or to the law of nature . sovereign and subject: by person exercising supreme and subordinate government. in the most general and comprehensive acceptation in which the term. some are established by superiors. . the aggregate of the rules. established by political superiors. there is not the will which law can work on. or a sovereign body of persons. Every law or rule (taken with the largest signification which can be given to the term properly) is a command. or which duty can incite or restrain. Laws set by men to men.

according to him. if a law hold out a reward as an inducement to do some act. and Paley). and incurred by the latter. or most of the laws which are simply and strictly so called. bentham. duty. By some celebrated writers (by Locke. or I lie under a duty to obey it. An evil to proceed from the former. Most of the laws which are established by political superiors. therefore correlative terms: the meaning denoted by each being implied or supposed by the other. or oblige generally persons of a class. that another rational being shall do or forbear. Being liable to evil from if I comply not with you’re a wish which you signify. 3. and sanction are inseparably connected terms. or enforcement of obedience. It also appears then that command. The evil which will probably be incurred in case a command be disobeyed or in case a duty be broken is frequently called sanction. the ideas or notions comprehended by the term command are: 1. A wish or desire conceived by a rational being. and not an obligation imposed. were simply impossible. in case the latter comply not with the wish. although you utter your wish in imperative phrase. If you cannot or will not harm me in case I comply not with your wish. the term sanction. I am bound or obliged by your command. Commands are of two species: laws or rules. oblige generally the members of the political community. Command and duty are. . is applied to conditional good as well as to conditional evil: to reward as well as to conditional punishment. An expression or intimation of the wish by words or other signs.A command is distinguished from other significations of desire by purpose of the party commanding to inflict an evil or pain in case the desire be disregarded. From what has been premised. Austin disagreed with this. an eventual right is conferred. 2. or an enforcement of obedience. However. the expression of your wish is not a command. To frame a system of duties for every individual of the community. upon those who shall act accordingly.

for the rules of etiquette are not laid down by a definite person. In so far as they release from duties imposed by existing laws. The emphasis on command achieved this end. THE BASIS OF JURISPRUDENCE Austin’s broad approach to law was to regard it as a command of the sovereign. or laws of imperfect obligation. through fear of that evil. Austin’s aim was to separate positive law sharply from such social rules as those custom and morality. they are not commands. Acts on the part of legislatures to explain positive law – working no change in the actual duties of the governed. There are other objects improperly termed laws (not being command) which yet may properly be included within the province of jurisprudence: 1. The party who is the superior as viewed from one aspect. A law which wants a sanction. and of forcing them. and the relation of inferior and superior are reciprocal. is the inferior as viewed from another. Positive laws is a general rule of conduct laid down by a political superior to a political inferior.Superiority is defined by Austin as signifying might: the power of affecting others with evil or pain. Imperfect laws. and which. but simply declaring what those duties are. COMMENTS BY PATON ON JOHN AUSTIN’S IMPERATIVE SCHOOL Paton discussed Austin’s views under three heads: (a) the basis of jurisprudence. (c) the relation of laws and ethics. to fashion their conduct to one’s wishes. therefore. the relation of superior and inferior. and that there is an implied threat of a sanction if the command is not obeyed. and to release from existing duties. 2. is simple and absolute. is not binding. 3. The notion of command requires that there must be a determinate person to issue the command. Laws to repeal laws. But in all or most cases of human superiority. The might or superiority of God. but revocations of commands. . (b) the method of jurisprudence.

But. and the life of society. punishment. however. the development of both law and legal institutions and their relationship to society. its concepts. if the law of each country is based on commands of the sovereign person (or body of persons) in that country. and distinctions were common to all systems of law.g. Some of the imperative school seem to proceed on the tacit assumption that all legal problems can be answered by analysis of the rules that exist and by deductions from them. Analysis reveals Austin’s foundation to be rather unstable: Firstly. Today. Austin did not analyse this problem acutely. although there are few rules of law that are universal. then there is no basis for general jurisprudence at all. without any real investigation. Its task is to study the nature of law. it is increasingly recognized that. yet there may be universal principles of jurisprudence. that certain principles. Even if a few notions are proved to be universal. they form somewhat narrow basis for a science of law. will not there be the utmost diversity between the legal systems? Is there any element of identity on which general science can be based? Austin did not deal clearly on this problem. on what is jurisprudence to be based? As each sovereign may command what he wishes. not to find universal principles of law. useful as analysis may be. Secondly. the nature of legal institutions. If further research shows that there are no concepts which are common to all systems. but to construct a science which will explain the relationship between law. Some notions were universal because it was impossible coherently to construct a legal system without using them. it will not suffice to answer all the problems of jurisprudence. there are few concepts which are common to all legal systems. e. right. He assumed. and redress. the terms duty. it is clear that there are no universal rules of law. Exaggerated positivism ignores the fact that law . nor in discovering rules which all nations accept. THE METHOD OF JURISPRUDENCE Austin believed that the chief tool of jurisprudence was analysis. The solution of the problem is that. Jurisprudence is not primarily interested in cataloguing uniformities. notions. 2. injury. Jurisprudence is founded on the attempt. we run to dangers: 1. and if we confine our analysis to such as we think are universal. The assumption of jurisprudence is that in all communities which reach a certain stage of development there springs up a social machinery which we call law.

The law that is does not exist as a perfectly proportioned body of rules deduced from a few leading principles. no system of law is perfectly self-consistent. criticism of the analytical school emphasizes two very significant truths for jurisprudence: 1. But we can see today that even the most positive member of the analytical school did not succeed in separating the law that is from ideal elements. law does not exist for the sake of consistency. Clearly. Hence any attempt to reconcile the rules on logical ground easily develops into a study not of the law that is but of the law that should be. for many a rule that is theoritically anomalous is based on sound views of public policy. but any rule that could not be fitted into the analyst’s framework was dubbed an historical accident or logical anomaly which (it was predicted) would soon disappear. The influence of their work was such. LAW AND ETHICS Austin distinguished jurisprudence. combined with the dogma that judges do not make law. if logic were to prevail. 2.develops not by logic alone. . What is here st6ressed is only that the analytic system based on Austin’s teaching did not make sufficient allowance for the creative element in law and tended to magnify the static character of legal rules. Analysts treated law as a coherent system based on certain fundamental principles from which particular rules may be deduced. led to a wasteful argument about whether or nor judges do make law when ion fact judges do make law. The analytical positivists still affirm the Austinian belief that: • Law can and ought to be made the subject of study separately from morals. the science of the law from the science of legislation which he based on the principle of utility. It is extraordinarily difficult for any school to resist setting up an ideal which can be made the basis for constructive criticism of the law. The social pressures of the past have led to many convenient anomalies being adopted. that their insistence that lawyers should be concerned with law that is. Naturally. but by drawing new values from the life of the community and by gradually reshaping the rules so that they accord with the standards of today. We cannot always convict a dissenting minority in the House of Lords of an error in logic – what is frequently decisive is the judge’s view of the purpose that law should achieve. Thus. But the analysts assumed that logical self consistency was the sole end of the law. however.

which means that the behavior commanded or prohibited by legal norms is also commanded or prohibited by the moral norms. what ought it be? The first question is sometimes answered by saying that law by its very nature is moral. because it is not just. if it is said that law according to its nature has a moral content or constitutes a moral value.• • Can be seen as a system of rules with a logic of its own capable of more satisfactory elucidation. that law is moral and therefore by its nature just. by stating that the law may. this order is not law. what is the relationship between the two? The other. The methods of linguistic analysis pursued by the philosophers can be employed in jurisprudence to clear up many puzzles which have troubled legal theorists. although the postulate is admitted that the law ought to be moral. The question is also answered. Furthermore. . that if a social order commands a behavior prohibited by morals or prohibits a behavior commanded by morals. but need not be moral. If the question of the relationship between the law and morals is understood as a question concerning the content of law and not as a question concerning its form. that the legal order is part of the moral order. then one asserts by these statements that law is valid within the sphere of morals. however. KELSEN’s PURE THEORY OF LAW LAW AND NATURE LAW AS A PART OF MORALS What is the relationship of law and morals? This question has two meanings: One. RELATIVITY OF MORAL VALUE But if an absolute value in general and an absolute moral value in particular is rejected from the point of view of scientific cognition. which means: just. and to produce clearer thinking for lawyers generally.

All moral orders have only one thing in common: that they are social norms. and that above all. that is norms. Morally good is that which conforms with the social norm that prescribes a certain human behavior. if in short. The relative moral value is established by a social norm that men ought to behave in a certain way. just or unjust. the assertion that social norms must have a moral content. it is meaningless to demand that the law ought to be moral. if one grants that under different circumstances different behavior may be considered good or evil. but many different and even conflicting ones. which is a (relative) moral value. one acknowledges that moral values are only relative: then. in these relative sense. as systems of justice. is subject to continuous change. morally evil that which is opposed to such a norm. must be just in order to qualify as a law. under all possible circumstances. no element common to the contents of the various moral orders is detectable. Then. can only mean that these norms must contain something common to all possible moral systems. as is . It is paramount and cannot be emphasized enough to understand that not only one moral order exists. just or unjust. In view of extraordinary heterogeneity. SEPARATION OF LEGAL AND MORAL ORDERS If it is assumed that law is moral by nature. the judgement of what is morally good or evil. All possible moral systems have in common their form. it constitutes the legal value. The law constitutes a value precisely by the fact that it is a norm. Under these presuppositions the statement “law is moral by nature” does not mean that law has a certain content. which merely means that the law is a norm. but that it is norm – namely a social norm that men ought to behave in a certain way. Such a postulate is meaningful only if the legal norms does not depend on their conformity with the moral order.because an absolute value can be assumed only on the basis of religious faith in the absolute and transcendent authority of a deity. And this means: The question about the relationship between law and morals is not a question about the content of the law. and nothing has to be considered good or evil. every law is moral: every law constitutes a – relative – moral value. however. morally justifiable or unjustifiable. the “ought”: they prescribe something. they have normative character. norms that order a certain behavior of men – directly or indirectly – toward other men. then. but one about its form. presupposing an absolute moral value.

but to know and describe it. this thesis amounts to an uncritical justification of the national coercive order that constitutes this community. for that introduces subjective and political considerations and he wishes his science to be truly objective.the law. Otherwise it would not be possible to evaluate a positive social order by a fixed standard of right and wrong. Kelsen wishes to separate the realm of jurisprudence from the natural sciences. • In its actual application by the science of law prevailing in a certain legal community. and to separate jurisprudence from the social sciences as rigorously as did as the analysts. it cannot be clearly defined by reason. must study the legal rules abstracted from all social conditions. COMMENTS BY PATON ON THE PURE SCIENCE OF LAW Kelsen wishes to free the law from the metaphysical mist with which it has been covered at all times by the speculations on justice or by the doctrine of ius naturae. if he is to be scientific. and that a legal order that at the time of its validity may have conformed with the postulates of the moral order then prevalent. From the point of view of science of law it must be rejected because it is not the task of this science to justify the law by absolute or relative morals. as ‘justice is irrational ideal’ – that is. presupposes an absolute moral order. • Justice is not a satisfactory concept for a science of pure law. Kelsen refuses to define law as a command. The dubious standard of an absolute morality is applied only to the coercive order of other nations. one valid at all times and places. independent of time and place. The thesis rejected by Pure Theory of Law: • That law by its nature must be moral and that immoral social order is not a legal order. For Kelsen. Justice for many rules may be unjust. that is. to lay down standards of action which men ought to follow. The latter deals with cause and effect. but they do not therefore cease to be law. He desires to create a pure science of law. we cannot adopt the easy method of defining law: • The modern tendency to regulate so many of the affairs of the private citizen means that the sphere of law is daily increasing. Law on the other hand does not attempt to describe but rather to prescribe certain rules. So the jurists. . may still be judged to be immoral today. stripped of all irrelevant material.

but we are not left with the dry bones of the law deprived of the flesh and blood which give them life. but deprives it of all interesting contact with life itself. but is jurisprudence therefore to ignore the whole question of ethics? The pure science of law is narrow one. Kelsen is correct in showing that law is a weapon that may be used to effect many end. is a study of the nature of this hierarchy of norms. Kelsen’s work is also valuable in its emphasis that in executing the norms of law the judge has much discretion – it is impossible for any general rule to provide for all contingencies. then. yet if the legal order is to be effective. and it must be complemented by other and broader approaches. in order to maintain the air of impartiality. validity of each norm depending on its being laid down in accordance with a superior norm until we reach the final norm which imposes an obligation on a particular individual. and all the examination of the sources whence the judge draws his rules when there is no authority in point. and the general rules must be made precise by those who have the duty of applying them. The doctrine of natural law has certainly been abused. The sphere of jurisprudence. but for the present we are concerned only with the bearing of his theory on the problem of the boundaries of jurisprudence. Kelsen’s methods does not even even give us a true picture of law. it must secure a certain measure of acceptance. .The law does not state what actually does happen. It is difficult to appreciate the significance of Kelsen’s work until the application of theory is understood. His claim that he has created an impartial and universal science is justified. To exclude the whole of sociology and of ethics leaves jurisprudence but a mental exercise in abstract notions. Kelsen regards as outside the scope of jurisprudence all discussion of natural law. But. Kelsen is not alone in his disgust at ‘politics masquerading as jurisprudence’. for jurisprudence must go beyond the formal hierarchy of norms to study the social forces that create law. This leaves the science of law very ‘pure’. but lays down what ought to happen.

and. In its crudest form. may be styled the: Sociological School. methods and ideas common to developed systems of law by analysis of such systems and of their doctrines and institutions in their matured forms. this is expressed in Austin’s dogma that a law is a command. German Historical School.2. The kernel of it is that law “is a product of conscious and increasingly determinate human will.1. 1. it is appropriate to a developed system only.” . Analytical School Instead of a further variation of one of the old creeds.3. 1. 1.CHAPTER VI THE FUNCTIONAL SCHOOL THE SCOPE AND PURPOSE OF SOCIOLOGICAL JURISPRUDENCE By Roscoe Pound SCHOOLS OF JURISTS AND METHODS OF JURISPRUDENCE It has been possible to divide the jurists into three principal groups: 1. Historical School 2.1. a wholly new creed is framing. Philosophical School 1. English Historical School 3. ANALYTICAL JURISPRUDENCE The analytical jurists pursues a comparative study of the purposes. Social-Philosophical School – the Neo-Hegelians seems to have the most fruitful program 2. and 2. Metaphysical School – during the first half of 19th century. • “Putting differences” and “taking of diversities” Hence.2. 18th Century Law-of-Nature School.

the historical philosophical jurist agree that law is found. the philosophical jurists--1. 5. For them the typical law is a statute.The Analytical School characteristics may be said to be: 1. and criticizes them with respect to such bases. 3. They regard the law as made consciously by lawgivers. 2. and particular doctrines and institutions. They see chiefly the social pressure behind legal rules. legal systems. They consider the past rather than the present of the law. 2. 5. and as a matter of expediency. the historical jurists may be characterized thus: 1. They see chiefly the force and constraint behind legal orders. legislative or judicial. As a rule. whereby the life of a people. They consider developed system only. Their type of law is custom. Hence. their philosophical view have been Hegelian. should be stated definitely and in certain form. expressed in the first instance in its traditional rules of law. jurist and They deny that law is a product of a conscious or determinate human will. makes itself felt in a gradual development by molding those rules to the conditions of the present. They hold that the living organs of law are doctrinal writing and judicial decision. Are more apt to consider the ideal future of law than its past or present. 2. 3. In comparison with the analytical and historical jurists. HISTORICAL JURISPRUDENCE In opposition to the analytical jurist. Their philosophical views are usually utilitarian or teleological. . its principles may. 3. PHILOSOPHICAL JURISPRUDENCE The philosophical jurist studies the philosophical and ethical bases of law. They regard the law as something that is not and in the long run cannot be made consciously. 2. not made. Believe that when law is found. 4. 4.

3. Displacing the individualist starting-point by insisting upon the importance of the group. 4. . 1. 2. the first type of sociologist looked at law in its evolution. in its successive changes. The doctrine has been set forth in its most extreme form in America: “Law is the resultant of forces which arises from the struggle for existence among men. RISE OF A SOCIOLOGICAL SCHOOL – THE SOCIAL PHILOSOPHICAL SCHOOL The first movement in the new direction was from the then dominant historical school in Germany. Hold very diverse philosophical views. A later form of what is essentially the same type of juristic sociology is to be seen in attempt to state all jural experience solely in terms of economics. THE POSITIVES – THE MECHANICAL STAGE Like the historical jurist. 5.” “The dominant class will shape the law to favor themselves…” The earlier type of sociological jurist’ service was in twofold: 1. Compelling us to relate the law more critically to other social phenomena. Have no necessary preference for any particular form of law. of the “compact plurality”. THE BIOLOGICAL STAGE Darwin had made evolution the central idea in scientific thought. Look at the ethical and moral bases of rules rather than at its sanction. The jurists were attractted by the conception of natural selection: the end of law is to give free play in an orderly and regulated manner to the elimination of the unfit. 4. of the class. to further selection by a well-ordered social struggle for existence. 2. and sought to relate these changes to the changes undergone by the society itself.

leading to a psychological movement in legal and political philosophy. THE PSYCHOLOGICAL STAGE Three influences combined to turn the attention of sociological jurists towards psychology: 1. 5. Study of the actual social effects of legal institutions and legal doctrines. if any.” THE PRESENT STATUS OF SOCIOLOGICAL JURISPRUDENCE Sociological jurists today insists upon six points: 1. The importance of reasonable and just solutions of individual causes. 4. and. when put in action. Tarde’s demonstration of the extent to which imitation is a factor in development of legal institutions. Sociological study in connection with legal study in preparation for legislation…. 3. 2. Study of the means of making legal rules effective. Study of group personality and group will. A means toward the end last considered is a sociological legal history. too often sacrificed in the immediate past to the attempt to bring about an impossible degree of certainty. 2. The complete change in method in the social sciences which resulted from Ward’s thesis that “psychic forces are as real as physical forces…”. 3. 4. It is much more important to study their social operation and the effects which they produce. Ward enumerated twelve “leading sociological conceptions or unitary principles” each of which had been “put forward with large claims to being in and of itself the science of sociology. But it is not enough to compare the laws themselves. A few years later.3. . THE STAGE OF UNIFICATION At the very end of the last century sociologists were coming to see that no one of the methods worked out was the whole of sociology.

3. Comparing sociological jurists with insists of the other schools we may say: 1. Their philosophical views are very diverse. and of statutes. We are studying what we shall want in order to appear before judges.6. . and 5. They look more to the working of the law than to its abstract content. or to advise people in such a way as to keep them out of court. CHAPTER VII THE REALIST SCHOOL THE PATH OF THE LAW By Oliver Wendel Holmes When we study law we are not studying a mystery but a well-known profession. law is also a process of balancing conflicting interests and securing the satisfaction of the maximum of wants with the minimum of friction. What attitude should jurisprudence take to the question of the values that direct the development of law? Kelsen would retain the scientific method. 4. They urge that legal precepts are to be regarded as guides to result which are socially just and less as inflexible molds. The means of the study are body of reports. of treatise. They regard law as a social institution which may be improved by intelligent human effort. But Pound considers that they must be analyzed thoroughly in order to understand legal development. COMMENTS BY PATON ON THE FUNCTIONAL SCHOOL • • The fundamental tenet of this school is that when we cannot understand what a thing is unless we study what it does. Make effort more effective in achieving the purpose of law. They lay stress upon the social purposes which law subserves rather than upon sanction. For Pound. 2.

Law can have a little weight in legal evolution. Perhaps the most immediate and most important influence of American legal realism was upon legal education. who finds his reasons for conduct. you are liable to pay a compensatory sum. Society is always changing. not as a good one. The concentration about the problems to be solved rather than upon the formal and authoritative explanations of how they had been. and the law therefore is in a state of flux. it follows that any force that will influence the judge in reaching the decision is a fit subject for jurisprudence. If you omit a tort. . solved. changed the whole nature of legal education.A legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court. moral judgments are developing. for the opinion of lawyers is only a guess as to what the courts will decide. some realists argued. COMMENTS ON THE REALIST SCHOOL BY PATON The realists defined law not as a set of logical propositions but in terms of official action. or ought to be. there is no law in the subject yet in existence. who cares only for the material consequence which such knowledge enables him to predict. Until a court has passed on certain facts. Since law is define in terms of official action (and not of the rules which should guide action). Nowhere is the confusion between legal and moral ideas more manifest that in the law of contract. If you want to know the law and nothing else. that rules of law must be assessed by reference to their consequences. Realists insisted that to know what a thing is one must see what it does. Those changes brought decline among law students in their understanding and appreciation of the internal discipline and coherence of systems of law viewed as rules and principles. you must look at it as a bad man. The duty to keep contract at common law means a prediction that you must pay damages if you do not keep it.

WHAT COURTS DO IN FACT How then a judge arrive at his decision? He does so by a “hunch” as to what is fair and just or wise or expedient. 7. CHAPTER VIII THE COMMUNIST THEORY . The so-called legal rules and principles are some of many hunch producers.” 8. Neither the background stimuli nor the congeries labelled “judge’s personality” are stated or statable in terms of the conventional legal rules and principles.COMMENTS BY JEROME FRANK. may loosely describe the judge’s personality. 4. Specific enforceable decisions in concrete cases are of the essence of the lawyer’s work. Whatever may be the stimuli to the making of those hunches.” 9. 2. According to Frank: 1. Specific decisions are the result of the judges’ hunches. 3. one should know about what produces judicial hunches. The formalist conveniently neglects the jury. The formalist errs also in overlooking that circumstance that it is impossible to predict what cases will be “contested” and the subjective nature of the “facts” of a “contested” case and the resulting unchangeability of the judge’s statement of those “facts. 6. 5. The failure to recognize the composite nature of this hunch and the artificial breaking up of the decisional process into “rules” and “facts” accounts in part for the delusion of the formalist as the exclusive value of the “rules. To predict or bring about decisions.

Marx devoted all the greater attention to the study of economic order. . The philosophy of Marxism is materialism. capitalist society. with a powerful instrument of knowledge. i. LENIN ON MARX Marx’s teaching is complete and harmonious. to enlighten and organize for the struggle. particularly the prospect of inevitable liberation of the working classes from bondage and oppression through revolutionary action made a strong impression on Russian radicals. providing men with a consistent view of the universe. CHAPTER IX THE POLICY SCIENCE SCHOOL LEGAL EDUCATION AND PUBLIC POLICY: PROFESSIONAL TRAINING IN THE PUBLIC INTEREST By Harold D. Lasswell and Myres S. freedom signified a new system of oppression and exploitation of toilers. from the power capable of sweeping away the old and establishing the new. Provided the humanity. 3. The doctrine of surplus value is the cornerstone of the economic theory of Marx. any defence of bourgeois oppression. The three components of Marxism are: 1.KARL MARX Marx’s ideas. which we cannot be reconciled with any superstition. After the overthrow of serfdom. 2. 1 and especially the working class. Marx answered this with the doctrine of the class struggle.e. Mcdougal The reform of legal education must become more ever more urgent in a revolutionary world of cumulative crises and increasing violence. having recognized that it is the foundation upon which the political superstructure is erected.

COMMENTS BY CRISOLITO PASCUAL ON THE POLICY SCIENCE OF SCHOOL OF JURISPRUDENCE AND ITS THEORY OF THE NATURE OF LAW The goal of the law is the creation of a world community conceived in mutual respect. Trend-thinking – this considers the shape of things to come orient himself correctly in contemporary trends and future probabilities. THE SUMMA THEOLOGICA Law is a rule and measure of acts. Scientific-thinking – to build up scientific knowledge.Adequate training must therefore include experiences that aide the developing lawyer to acquire certain skills of thought: 1. where the different representative social values or desirable objects of human desires are widely and equitably shared. whereby man is induced to act or is restrained from acting. understanding and rectitude. afterwards these things which emanated from . Justice has its source in nature. Reason has its Every act of reason and will in us is based on that which is according to nature for every act of reasoning is based on principles that are known naturally. 2. thence certain things came into custom by reason of their utility. The law becomes meaningful only when considered as the vehicle or machinery to realize the end in view. The rule and measure of human acts is the reason. THOMAS AQUINAS. CHAPTER X NATURAL LAW ST. 3. Goal thinking – to promote the major value of democratic society and to reduce the number of moral mavericks who do not share democratic preferences. power of moving from the will.

human experience has led to insoluble difficulties and to inescapable inadequacies. Thomas succeeded in constructing a philosophical and theological wisdom so elevated in immateriality that it is really free of every particularization of race or environment. His metaphysical principles were based upon objective reality.nature and were approved by custom. but a meager few have ever attempted seriously what legal philosophy they should stress to students. it is no longer a law but a perversion of law. Coquia There has been a sudden increase of law schools. were sanctioned by fear and reverence for the law. In temporal law there is nothing just and lawful.” Any point deflecting from the law of nature. COMMENTS BY JACQUES MARITAIN ON ST. The ideological conflicts in our times have forced the return to the natural law way of thinking thus giving truth to what Gilson once said that “the natural law buries its own undertakers.” . and evil is to be avoided. There is no denying of the fact that in each attempt to enunciate a new philosophy of law. THOMAS AQUINAS St. FOR A REVIVAL OF NATURAL LAW DOCTRINE IN PHILIPPINE JURISPRUDENCE By J0rge R. First precept of law: “Good is to be done and ensued. but what man has drawn from the eternal law. One of the causes is the confusion that there have been many different approaches to what proper end of law is.

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