LEGAL PROFESSION | MIDTERMS COVERAGE

Research Notes

RESEARCH NOTES CLASS NOTES

What is the law?
 In its comprehensive sense, means- any rule of action or norm of conduct 
applicable to all objects of creation.
 In its specific sense, means- a rule of conduct, just, obligatory, promulgated by
legitimate authority, and common observance and benefit.
 Lawyer’s are typically more interested in the question: What is the law applicable
to a given issue?

Philosophy of law as a discipline directly deals with the different definitions and the very
nature 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 concept surrounding this abstraction called “law”

Law, Morals, and Customs

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.

Customs- compared to law, are far less imperative in their force for they do not normally
imply ethical evaluations. The former refers to those that are habitually done in the
community.

Laws and its Concepts

 Rule of Conduct- as a rule of conduct, the law mandates what is right and
prohibits what is wrong. It serves as a guide to right conduct of people.
 Just, the law is just; otherwise it cannot command respect and observance.
 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 .
 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.
 Common good, The end of law is for the common good. The law is for everyone
to obey and such, it not only seeks to attain individual wants and needs but seeks
to attain collective wants and needs.

Nature of Law

C.A. Justice Crisolito Pascual said the foremost authority on the nature and philosophy of
the law in the Philippines , the origin, development and function of law may be separated
into various schools:
- Historical school of jurisprudence - Functional school of jurisprudence
- Realist school of jurisprudence - Policy science school of jurisprudence
- Teleological school of jurisprudence - Marxist-Leninist school of jurisprudence

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 Historical view – Jurists who advocate the historical concept are mainly interested
in the origin of law and its growth and development. Also concerned with the
causes of the changes in the growth and development of law. Law should be related
to social environment in which it has developed.
(Friedrich Karl Von Savigny, a german jurisprudent and legal historian,
maintained that custom is the real produce of a sound of law. Law, according to
him, is a spontaneous emanation from the spirit of the people. Historical school
introduced philosopohy of the “folksoul”. This folk soul or folk spirit is called the
“volkgeist”.

 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.
(according to St. Thomas Aquinas, law is an ordinance of reason for the common
good, made by him who has a care for the community, and promulgated. In
formulating his legal philosophy, St. Thomas Aquinas advocates the proposition
that the public welfare or the common happiness is the first concern of the people
since anything concerns 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.

 Positivist / Analytical View – the jurists are concerned with the examination and
analysis of the legal system, its process and objectives.
(A well-known exponent of this concept was Jeremy Bentham, 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 o determine whether in their
enforcement they would promote the greatest happiness of the greatest number of
people in society.)
(Another advocate of positivist is John Austin also an Englishman. That the law is
a sovereign command “from superior to inferior”, enforced upon those under his
authority and jurisdiction, and imposing penalties and sanctions to those people
who do not obey.

 Functional View – 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 settle the conflicting interest of men as pointed out in their legal
controversies or disputes. Emphasized by Roscoe Pound (1870-1964) longtime
dean of Harvard Law School.
(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, claims and
demands with an eye to secure a maximum number of the social interest with the
minimum of friction and waste as accomplished through social engineering.)

 Realist View – The discussion revolves around the question of whether or not the
law is verifiable in the practical life of the people. “The life of the law has not been
logic, it has been experienced.” Holmes ridiculed that the legal cases are best
understood as the application of rules.
(American Supreme Court Justice Oliver Wendell Holmes, Jr. suggested that in
inquiring what the law is all about, one must seek to define law as the prediction
of what legal officials do. Advocates thought are interested in empirical

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examination as examination of how law in fact is operated in specified legal

systems.)

 Policy Science View – Prof. Harold D. Laswell and Prof. Myres S. McDougal
founded the policy-oriented school in jurisprudence which views law in the
context of the basis and limits of effective global, regional and national legal orders
in relation to social values.

 Marxist-Leninist View – “What does the law protect?” It considers a socio-class

regulator expressing that the state shall be raised to the level of law, of the
economically dominant class. It performs protective functioning counter-
revolutionaries, hooligans, and other disruptive elements. This view maintains that
in the finally achieved state of communism, law and the state will wither away.
(Evegny V. Pashukanis 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.)

Law: Classification and Sources

Jural Law – is man made and positive law.

3 distinct senses – Particular, Collective Abstract

1) Particular Sense – law refers to statute, that is, enactments of the legislative branch of
the government.
2) Collective Sense – refers to the bulk of specific or particular laws relating to one
subject matter, or when it relates to laws obtaining in a given society. An example-
Penal law which consists of laws relating to crimes and penalties.
3) Abstract Sense – mentioned without reference to a definite article preceding it , or
when it is preceded by the definite article.

Non-Jural Law – universal and basically makes reference to a Higher being.

Consists of 4 kinds: Natural, Divine, Moral and Physical

1) Natural Law – considered as the ultimate source of every type of law. It is described
as a system of rules prescribed by divine inspiration to all men, not by any formal
promulgation, but by an inward impression upon the human hear and those rules
attained by the light of natural reason and understanding.
2) Divine Law – rule governing thins as it exists in God the ruler of the universe. It is the
law of religious faith and concerns itself with the concept of sin and salvation, of life
and death, of the temporal and the eternal. A subdivision of divine law is cannon law,
which is the law of the medieval Roman Catholic Church which, as revised, remains
to be enforced by the Vatican.
3) Moral Law – is that set of rules which establishes what is right and wrong as dictated
by the human conscience and as inspired by the Eternal Law.
4) Physical Law – universal rule of action governing the conduct and movement of things
which are non-free and material. The laws of gravitation and of chemical combination
are examples of physical law.

Aquinas Classification
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 St. Thomas Aquinas formulated a four-fold classification of types of law:

1. Eternal Law – God’s plan for the universe
2. Natural Law – that part of eternal law in which humans participate by
their reason.
3. Divine Law – God’s direct revelation to humankind through the
scriptures
4. Human Law – particular determinations of certain matters arrived at
through the use of reason from the general precepts of the natural law.

Traditional Classification
-Traditional classification of law is public law and private law. Both refers to the
substance of rights and obligations, thus they are called substantive law as distinguished
from legal procedure which provide for the process in adjudicating substantive law cases.

 Public Law – concerns the government, the rights and obligations of a citizen vis-
à-vis the government; and the relationship among nations. Public law has four
types: Constitutional law, Administrative law, Criminal law, and
International Law.
1. Constitutional Law – is the basic charter of a nation that defines the
powers of the government and the rights of its people.
2. Administrative Law – are the issuances and regulations of a department
under the executive branch of government for effective implementation
of the law germane to said department.
3. Criminal Law – defines offenses that cause harm upon society, as well
as penalties for commission.
4. International Law – is concerned with the relationship among nations,
international trade and disputes including war and its conduct.

 Private law – concerned with the rights and obligations of individuals with other
persons and entities and claims that may be pursued in instances of injury upon
the person, property and reputation as well as in breach of a valid obligation.
There are six types of private law, namely: Tort law, Property law, Contract &
Business Law, Corporation Law, Inheritance Law and Family Law.

1. Tort Law – is an obligation that arises due to an action of a person who

causes injury or wrong upon another. Tort is generally unintentional
otherwise it may be treated as a crime.
2. Property Law – deals on ownership and use of real or personal property.
It also governs disposal, lease and encumbrances of property.
3. Contract & Business Law – covers the rights and obligations of
individuals or entities that enter into contracts such as partnership,
insurance, negotiable instruments law and transportation. A contract is
considered law between the parties.
4. Corporation law – provides for the establishment and operation of
companies registered under the SEC. The law also defines the rights and
obligations of stockholders, board of directors and officers.
5. Inheritance Law – governs the transfer of property upon the death of
the owner. It specifies the rights of successors and requirements for a
valid will.
6. Family Law – consists of provisions defining the relationships between
spouses, parents and children, marriage and annulment and legal
separation.
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SOURCES

 Constitution and Administrative Rules – The Constitution is the basic charter

of a nation. It defines the form of government, the functions of the different
branches and reflects the beliefs of its people. Administrative rules are issuances
of specific offices of government for the effective implementation of statutes.
 Legislative Statutes – Laws are generally passed by an assembly, either Congress
or Parliament, whose members are elected directly by qualified citizens.
 Judicial Precedents – Decisions of the courts on matters raised for adjudication
can be a source of law. In certain instances the highest court decides on the
constitutionality of a statute and being the court of last resort promulgates final
judgment on questions of law.
 Customary Practices – These are accepted norms of a community of people
based on Customs and Tradition. (Art. 11 and 12 of the Civil Code)

How laws are changed

The manner of changing the law includes:
1) By Court decision
2) By Legislation
3) By Administrative Action
4) By Direct action of the people.

 By Court Decision – In common law countries, judges may change the laws by
expanding and overruling precedents. The decisions of the judges of the lower
court are subject though to review by the higher court. If the interpretation of a law
by the court is not to the liking of the government, then the legislative body may
change the law.
 By Legislation – Since legislature pass laws, it has the power to amend, repeal or
pass a new law on the same subject.

(legal prof pdf has no page 11, naputol)

Profession

- Dean Roscoe Pound defines profession as “a group of men pursuing a learned

art…in the spirit of a public service.” What, therefore, differentiates a profession
from a trade or business is the latter pursues economic gain or profit, while the
former, has the primary purpose of serving the public, and gaining profit is
incidental.
- In a more restrictive sense, the word “Profession” often refers to fields of
specialized knowledge such as law, medicine, military, nursing or engineering.

 Duty to Profession – all true professional men recognize that they owe a duty to their
profession. It is their responsibility to improve it. A profession must have a code of
ethics that goes beyond the document, but is applied by each professional must make
available his service to those needing said service but can ill-afford it.
 Profession in Society – The general definition of the term “profession” emphasizes two
words, “public service”. This is an important element for a “profession” to be
considered as such. His main focus should then be the collective development of the
society above individual gain.

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