Chapter! LAW: Its Meaning and Concepts is the la ‘Such @ profound question is usualy given diferent answers depending on vw the person you are asking. However, lawyers are typically more interested in the question, What is the law epplicabie to a given issue? This is always a / specific mA is question and answers to it are bound to differ accord jurisdiction on which they are ntrast, th@_philosophy of interested in the general question What is law? The general’ question about the nature of law presupposes that the Taw-is-atnique socio-political phenomenon, With more of less. universal characters that canbe discerned through |// phosophical nalyieyanerajursprenc, as ts philosophical inquiry about the nature of daw is called of meant-to be universal. it assumes that law possesses certain features, and it possesses them by its very nature, or essence as law, wherever and whenever it happens to exist. /,,... However, even if there are such universal characteristics of law, the Ca for @ philosophical interest in elucidating them remain to be explained. First, there is the sheer intellectual interest in understanding such @ complex fal phenomenon that is, after all-onié of the most i vaspects of human ‘culture. Law, however, is also € normative social practice:.It purports to guide \/Muman behavior, giving rise to reasons fon AN attempt to explain this normative, reason-giving aspect of law is one of the main challenges of general funsprusence. Law i nyo te normative domain in our culture, moray, / / ‘eligion, social conventichs, etiquette, and so on, also guide human conduct in many ways which are similar to law. Therefore, part of what is involved in the ferstanding of the nature of law involves an explanation of how law differs 4rom these similar normative domains, how it interacts with them, and whether its inteligibilty depends on such other normative orders, like morality or social conventions." = Tt hy of law as a discipline directly deals with the different Aefiitions and the ver ‘of law. A lawyer, being an officer of the court who is primarily tasked to administer justice to the society, must first seek to answer this query in order for him to be able to fully grasp the nature and concepts surrounding this abstraction called “law.” To know what the “law” per se inslates to a lawyer who is better equipped in doing what is expected of him. Since the dawn of civilization, man has sought to unravel the mystery that surrounding him and the discipline of law has not escaped man's insatiable appetite for knowledge. Theories were presented to explain the development, “nature and céncepts of law. They provide theoretical formula on which the officers of the court, legislators and government officers can work on in formulating and constructing jurisprudence, legislation and administrative orders respectively. ‘The philosophy of Vaw provides 8 wii ofwinat is right and ideal. To be abreast with the philotophy of law means to be familiar and knowledgeable with the very foundation on which contemporary laws are built on? yaLaw In its comprehensive sense, “law" means any rule of action or norm of conduct applicable to all objects of creation. It includes all those that necessarily determine the conduct of men, all those that necessarily determine the motions (or instincts of brute creatures, and all those which God, before all things, has imprinted on the whole of nature. In its specific sense, law means a rule of conduct, just, obligatory, promulgated by legitimate authority, and of common observance and benefit.” Mo! ci ‘The law, however, is but one of the methods of regulating human conduct; standards of morality also serve as social regulators. Hence, it is imperative to differentiate law from the ather two concepts. Morals are aggregate of all the rules of human conduct growing out of the collective sense of right and wrong in the community. It serves as the social conscience with the primary objective of helping men achieve happiness. The ference between morals and law lies on the circumstance that the fields of fnorals include not only the duties of man to his fellow being, but also to himself and to his God. An act may:be entirely in conformity with law but contrary to morals and vice versa. A conduct may be justifiable from the point of view of morals but contrary to law. There is much law that has nothing to do with morals, Conversely, what is moral may not be legally demanded.* Chairman Jorge C. Bocobo of the Code Commission posited that "every law draws its breath of life from morals, from those principles which are written with words of fire in the conscience of man." Morals may be sources of law but es laws are two different concepts. Customs, compared to law, are far less imperative in their force for they (Anat normaly imply ethical evaluations The former refers to those that are habitually done-in the community. Primitive law is customary law wherein its ‘sanction lies in habit. However, with the advances of political organization, customary law begins to break down rapidly or rather its recognition begins to depend upon the 1@ political government. There is a need, therefore to translafe customs into law. Similar to that of morals, customs may be sources of contemy Law and Its Concepts Va Rule of Conduct. As a tule ‘of conduct, the law mandates what is right and prohibits what is wrong. It yes'as a method of regulating human conduct and implies the determination ofthe direction ‘of movement or activity and the proper corresponding restraint. {serves as a guide to fight conduct of people. It is a form of gocial contyiet over the behavior of individuals in a given society. Without such, order and stability would be difficult, if not impossible, to maintain. Lawasa rule of conduct speaks of its primary objective, the maintenance and preservation a {ors in as ‘and for the promotion of the common good.°Just. The law is just; otherwise it cannot command respect and ‘observance. It is enacted in accordance with reason and applies equally to all persons in the society.” Obligatory. No one is above the law. Its being obligatory is inherent in law, since the law binds the human will upon which it exerts.a pressure. As stated by Marcelino Lizaso in his book entitled, "introduction to Law," the obligation comes from the right of the superior by placing a command of iaw on the subject, or from the acknowledgement of the superior's right of which the subject is aware.” Enacted by a Legitimate Authority. For the people to be aware of its existence and for the law to become binding, legitimate authority must enact the same. This does not only hold true to positive law, but also to natural law. In the former, the laws are established and promulgated by competent authority while in the latter, the laws are revealed through reason as established and promulgated by the Author of nature and imposed upon all men through their very nature. Common Good. The end of law is for the comm maintained by Lizaso, it must guide and enable man to reach ths sffection of his nature as a free and rational being, not merely as an individ -as.a member of a social unit. The law is for everyone to obey and as such, it not only seeks to attain individual wants and needs but seeks to attain collective wants and needs.° ‘Nature of Law At this point, it hoes know certain concepts basic to the understanding of law. In jurisprudence? which is the science of law, these concepts differ from each other although they contain some elements common to all. The different schools of thought are more or less-similar in the idea that the application of the law should be uniform.'" ve ‘According to former Court of Appeals Justice Crisolito Pascual, the foremost authority on the nature and philosophy ofthe law in the Phiippines, the |_~ ion of law may be separated into various schools; ‘namely, the historical school of jurisprudence, the teleological school of jurisprudence, the functional school of jurisprudence, the realist school of jurisprudence, the policy science school of jurisprudence, and the Marxist- Leninist school of jurisprudence. * The Historical View. Jurists who advocate the historical concept are mainly interested in the origin of law and its growth and development. They are also concerned with the causes of the changes in the growth and development of law. They contend that the law should be related to the social environment in which it has developed. ‘Those who adhere to this school of thought believe th: necessary influence to the. existance of formal or positive law. ‘concerned to the law as sovereign command, but are more interested in what the people perceive as right or wrong. In other words, the distinguishing characteristic of the law as the people regard it is that it should be available to the collectivity so as to generate an attitude or general obedience. °Friedrich Karl Von Savigny, a German jurisprudent and legal historian, maintained that custom is the real produce of a sound law. Law, according 10 him, is a spontaneous emanation from the spirit of the people. The historical school introduced the philosophy of the folksoul to the concept of the nature of law. The law thus constitutes the soul or spirit of the people that permeates the members of the community in common. This folk soul ‘ folk spirit is called the volkgeist. Simply said, the historical advocates regard {aw in direct relationship with the life or national development of the people. The Teleological View. Advocates of the philosophical concept regard the law as having been created on the principles of right and good. In other words, the law is always right and it could be used by the political authority as means of achieving goal for promoting social justice and the common good. Such a law is conceived by human reason. According to St. Thomas Aquinas, law is “an Crdinance of reason for the common good, made by him who has a care for the ‘community, and promulgated.” Therefore, under the philosophy concept, the yardstick for testing the validity of the law as promulgated or enforced should be in accordance with the rule of right and reason for the common good. The rof the: philosophical jurist is the creation of an ideal system of law based Upon athics an ustion In formulating his legal philosophy, St. Thomas Aquinas advocates the proposition that the public welfare or the common happiness is the first concem of the people since anything concems a person to whom the end or purpose belongs. To this end, therefore, the law is ordained for the sake of the common good and happiness. '° The Positivist or Analytical View. The positivist or analytical jurists are concemed with the examination and analysis of the legal system, its process and objectives. A well-known exponent of this concept was Jeremy Bentham (1748- 1832), father of utilitarianism in England. He was very much interested in the process of the legal system and stressed that all laws should be examined to determine whether in their enforcement they would promote the greatest happiness of the greatest number of people in-society. What Bentham meal was that the "greatest happiness" principle was to be used to measure the value oy of the law and that jurisprudence was to analyze and “censure” the law in the, ~ light of its contribution to thergenieral welfare, Further_in Bentham’s view, the usefulness of law is to be measured in terms of their effectiveness, the coastlines of their enforcement, and the result of their application.” ~ Another advocate of the positivist concept was(John Austin (1770- 1859), iso an Englishman. He viewed the law in another perspective, that the law is a }/ sovereign command "from superior to inferior," enforced upon those under his ty and jurisdiction, and imposing penalties and sanctions to those people Avo do not obey. Austin’s theory of law makes him a staunch advocate of the estive tw. Bentham agreed with Austin and said, “somewhere in a political ), legal power must be in some person or persons who are accustomed ta” obey.” The gist of Austin’s concept is that what is more important ‘of power and authority of the law rather than its rightness, ne siecne a -‘The perception of this particular schoo! of jurisprudence about the nature ‘of law is that itis objective, that is to say, consciously made or uttered within the bounds of the different branches of the goverment, and therefore, legally authoritative and commanding, ‘The school regards the law a8 the totally of jural rules of principles sciously set by man in the state as poltical superiors, to men as poltical Subjects and enforced by material sanctions (command theory of law). The law in ‘View poss nliat-attributes; namely, Conacloyl creation, generality and ment" z ; Functional View. The functional idea of law emphasizes what the law does and how it functions. This concept gives primary importance of the functions of the judicial system which is expected to setle the conflicting interest ‘of men as pointed out in ther legal controversies or disputes, This concept of the ‘ature of law was much emphasized by Roscoe Pound (1870-1964), long-time dean of the Harvard Law School, and @ leading exponent of the functional school. ‘The advocates of the functional concept interpret the law as one possessing policy value that is essential in attaining men’s maximum wants with Vi minimum Becta ‘conflicts. In the end, the functional jurists regard the law as 2 result of what the judiciary or an administrative insitution does to balance Competing interes in the socety that they will be able ta enjoy equality ofa legal justice. This is sometimes referred to assacial engineering-* ‘The law is viewed as a living thing and that its development is interrelated with the social environment in which it grows including morality, manners, politics, religion and customs of the people. The functional schoo! takes for its ‘authoritative starting point all the social phenomena of facts in relation to their ‘actual effects in the community. For functional jurisprudence, the binding force of law is based on the social interests.” ‘As explained by Lizaso, law should be treated as “social mechanism for the engineering and adjustment of conflicting interests. The law is continuously ‘engaged in the process of reconciling, and of settling conflicting wants, and demands with an eye to secure a maximum number of the social with the minimum of friction and waste 2s accomplished through social engineering’ C Realist View: The discussion Tevalvés eround the question of whether or not 8 TaWS verifiable in thé practical fe ofthe people. The realist school as the term itself well implies, takes for its starting point all of realty or actual experience, American Supreme Court Justice Olver Wendell Holmes, Jr ‘suggested that in inquiring what the taw is all about, one must seek to define law 2 the prediction of what legal offcialsdo. Advocates of this school of thought ate interested in empirical examination as examination of how law in fact is ‘operated in specified I /, declaring that tho “ie of the law has not been loge. I hes beon Ppl jolmes ridiculed that the legal cases are best understood as the ication of rules. Since the “rules” allow the judges considerable leeway, he orfore of a function of such fact S as the judge's psychological pare lass and values than of anything vitten’ down an called The law is therefore the individual's idual's decision and not a system of ules and principles as there can be no certainty of a judge's decsions a aaa Policy Science View. Professor Harold D. Laswell /. ). ‘and Professor Myres S. McDougal founded the pokey oented ‘schoo! in jurisprudence which views law in conte» and limits of effective global, ional and national legal orders in relation to social values. a ee ae ‘The policy science schoo! of jurisprudence posits the view that the law can truly be an instrument of global, national and regional contol when it is ‘committed to the complete achievement of the/social values that constitute the professed ends of democratic societies. This means that the law is an advocacy ‘of consistent, compatible, and principled policies, legislation and decisions on the basis of social values. Thus, it can be said that from the perspective of this juristic calls, the law is a vital instrument for-ordering, conduct through the formation, clarification and realization of th jues where the patterns of authority are conjoined with the patterns of control.*®_— Manist-Leninist View. The theme of this particular school of thought revolves around the question - What does the law protect? It considers a socio- fs regulator expressing that the state shall be raised to the leve! of law, of the Economically dominant class. It performs protective functioning counter- revolutionaries, hooligans, and other disruptive elements. Evegny V. Pashukanis, who believes that the economic organization of capitalist society is determined by Commodity exchange and that law constitutes a “superstructure” reflecting the Economic organization of society, further developed the Marxist-Leninist view. This view maintains that in the finally achieved state of communism, law and the state will wither away.*” ve ENDNOTES cit plat stanford ecufnttentawphi-oature> Ibid ® Schauer, F. The Philosophy of Law. Canada. Wadsworth Pub Co.1996, + Rodriguez, R. Introduction to Law. Manila: Rex Bookstore, 2001, * ibid Sid. 7 Lizaso, M. Introduction to Law. QC: Central Law Book Pub Co,, Inc, 1991, id ° tid, © ibid. id. *2 ayson, Florentino. The Fundamentals of Political Science.AAM: National Bookstore Publishing House, 2000. Rodriguez, R. Introduciton to Law. Manila:Rex Bookstore, 2001 ayeon Florentine. The Fundamentals of Polttcal Science MM: National Bookstore Publishing House, 2000. 18 Rodriguez, R. introduction to Law. Manila:Rex Bookstore, 2001, +® aygon, Florentino. The Fundamentals of Political Science.MMM: National Bookstore Publishing House, 2000.Wy Rodriguez, R. Introduction to Law. Manila:Rex Bookstore, 2001, 8 pysor , Nn, Florentino. The Fundamentals of Political Science. MM: National Bookstore Publishing House, 2000. © Ibid. ® Ibid. 2 Ibid. 2 Rodriguez, R. Introduction to Law. Manila: Rex Bookstore, 2001 ‘Lizaso, M. Introduction to Law. QC: Central Law Book Pub Co., Inc., 1991. %* Rodriguez, R. Introduction to Law. Manila:Rex Bookstore, 2001. Schauer, F. The Philosophy of Law. Canada. Wadsworth Pub.Co. 1996. 2 Rodriguez, R. Introduction to Law. Manila:Rex Bookstore, 2001. Ibid.