POLITICAL LAW
2. Two ways of fighting
RIGHT
- Modern concept
- Brought about by libertarian revolutions
- Inspired by reformist philosophers who believed in a government by consent
o John Locke for the American Founding Fathers
o Jean Jacques Rousseau for the French philosophes
SOCIAL CONTRACT THEORY
- Replaced the divine right theory that justified the absolutism of monarchies
- The origin of society was brought about by conventions and agreements called
the SOCIAL CONTRACT
o Brought about the modern state, civil society, and civil rights
o Laws including the constitution are expressions of this contract
- Events inspired by the writings of the Enlightenment philosophers
o Magna Carta by King John of England
o Glorious/Bloodless Revolution in England. Overthrew King James II
o French Revolution
o American Revolution
o Philippine Propaganda Movement by the Ilustrados
NICCOLO MACHIAVELLI:
THE BREACH AND THE PRACTICE OF POLITICS
- Machiavelli was the classic power pundit.
o Son of an Italian lawyer
o Appointed diplomat, administrator, and chancellor of the Florentine Republic
o After he was tortured by the Medici regime, he wanted a revolution to restore
the Republican state
- He wanted a Roman Republican government that promotes self-government and
liberty
- On religion
o A ruler can take advantage of it but he would be at a loss without it
o The Christian standard of behavior is a means to securing peace.
- The Prince was written for rulers in the making in an unstable society.
o Critique of Rousseau: the tips will inevitably lead to dictatorship and revolution
TIPS ON HOW TO RULE
1. If the ruler cannot be good always, he must at least pretend.
a. Where the art of deception comes in
a. By law for man
b. By force for the brutes
3. Black Knight Principle. The ruler should shower the favors but should
delegate the punishments
4. It is good to be loved and feared. But feared > loved.
a. When one is able to instill fear, others will follow without the leader
giving anything in return.
b. Should not be hated to the point of igniting rebellions
5. Punishments should be done all at once so that seldom felt will be less
remembered.
a. Punishments should be swift but should not be the order of the day
lest people be desensitized.
6. A ruler must be shrewd and swift to match the inconsistency of the people
and the political environment.
a. Ruler must be flexible to adapt to social trends.
7. The end justifies the means
a. If the ruler succeeds, the people are his.
THOMAS HOBBES
ON SOVEREIGN IMMUNITY
- Life was originally poor, nasty, brutish, and short.
o Holds true even today in the way we constantly guard ourselves and out
belongings
- Eventually, alliances were made and agreed to call into law enforcers as people
wanted to keep themselves safe and peaceful.
o People surrendered their original freedom to their rulers in exchange for safety
and peace so that they may enjoy their rights without hindrance.
AUTHORITARIANISM
- The mutual transferring of natural right to the Sovereign is the social contract.
- Either there is a chaos of wills where everyone is pursuing their self-interest or
there is only the will of one sovereign as the law to keep everything in perfect
order.
- Sovereign
o Either be an individual or a group of individuals
o Holds power from the people, the commonwealth, to maximize the interest
of all
o This structure runs the risk of abuse but better the abuse of one than the
abuses of everyone against everyone.
- Once the people hand their sovereignty to the ruler by putting them in power, part
of the terms is to follow their rules.
o From this, the doctrine of state immunity from suit arises
 o The sovereign is absolute and that there can be no legal right as against the
authority that makes the law on which the right depends.
THOMAS MORE
ON REPUBLICANISM AND THE FAMILY AS THE BASIC UNIT OF SOCIETY
- Catholic patron saint of lawyers
- Believes in the corrupt “fallen” nature of man
- Because man is corruptible, it will be too risky to put all sovereignty into one
man’s power in perpetuity.
- First to propose that the sovereign must be elected by the people so that they
can check and terminate their ruler’s regime for abuses
- Believed in Republicanism
- Did not want a state religion. Believes in separation of church and state but not
the absence of morality in politics.
o The deistic notion of natural religion where the citizens have a basic belief in
god and the immortality of the soul as discovered by reason and conscience
will suffice in a utopian state.
- Advocacies
o Representative government
o Rule of law
o Belief in a higher moral law
o Family values at the hear of a good government
THE FAMILIAL STATE
- A Treatise on the Passion
o Because of the human tendency to err, they need a government
o Family is the first government in the natural society where we learn the virtues
to be exercised in a larger society
- Utopia. The family is the basic unit of society. To attack the family is a symptom
of social chaos.
o August Comte: the true social unit is the family where the principle of
subordination and mutual cooperation is exemplified.
- Because of the importance of the family, there are strict regulations to prepare
men and women to marriage and sexual fidelity
o Those who cause the dissolution of the family should not be allowed to marry
again.
- Believes in relative divorce (legal separation) but not absolute divorce that allows
remarriage especially for the guilty party.
- Latin Poems
o A good ruler is like a father to his children rather than a master to his subjects
o Recalls the Roman standard of pater familias = due care of a good father of
the family
- The sovereign must consider the people as part of his own body.
o Must be a watchdog and a guardian ready for service, not a tyrant or a wolf
ravaging his own flock.
- Suggested a government like the Roman Republican Senate
o Where the people could consent on bestowing and withdrawing sovereignty
o Where leaders could involve themselves into a free discussion
RULE OF LAW
- While a king is mild during the first year of power, his unlimited power makes him
proud and dismissive of others’ good opinions. This selfishness will wear the
people out.
- To correct an absolutist government, the people must at least make as little bad
as they can through the rule of law.
o Law is a criterion of justice and the substantial shield of freedom.
- To prevent the abuse of law-making, there must be few laws but more
conventions and regulations.
- A Dialogue Concerning Heresies
o There is a natural law written in the human heart that anyone can know by
reason
o Ignoring this will cause grief in the long run.
JOHN LOCKE:
UNLOCKING INALIENABLE RIGHTS
- Stressed that man has reason and conscience which makes him a self-
determining free individual
- His liberal philosophy inspired Thomas Jefferson and the American
revolutionaries.
- Second Treatise on Government
o People originally lived in a state of peace, goodwill, mutual assistance, and
preservation
o Man by nature is sociable and the social contract was made to further the
common welfare
o Civil government must be created for greater convenience.
- Civil rights
o They would not exist without the promulgation of laws brought about by the
social contract
o Should protect and supplement natural rights through written laws.
- Inalienable rights
o Rights in every human that cannot be transferred to the government through
a social contract
o Life, liberty, property, pursuit of happiness
o Human beings happen to share the same experiences that are rationalized
into universal principles.
THE PEOPLE’S TRUST
- Social Contract
o Pact between free men for the public good
o Law’s hold must be limited to public affairs. Beyond this, the people should be
free to be themselves.
o When the sovereign goes against the public good, he betrays the people’s
trust and they have the right to disobey and revolt.
o Express consent of the people must be obtained under a social contract
because it is the people who know what is best for themselves.
- Although the trust is revocable, the social contract is not.
o The overthrown leader will be replaced but the communal and civil laws
remain.
o Doctrine of non-delegation. Sovereign power cannot be transferred to those
whom the people did not entrust this power.
 The Legislative cannot transfer the power of making laws to any other
hands. For it being a delegated power from the people, they who have it
cannot pass it over to others.
- Tripartite system
o Separation of the legislative, executive, and federative powers
o So that no government body could be all-powerful
- Opted for a parliamentary form of government, majority rule, and popular
representation since sovereignty resides in the people
JEAN JACQUES ROUSSEAU
ROUSING MAN TO BE FREE
- Man is a noble savage
o Conceived man to be originally good and free
o Doctrine of presumption of innocence
 Puts the burden on society to prove the guilt of an accused
- Sought to reform society. Man was born free but everywhere he is in chains.
o Man is fundamentally good but society can bind and condemn people in unjust
ways
 Under the natural state, we only want self-preservation and reproduction.
 In society, we want public esteem and reputation. With these come vanity,
contempt, shame, envy, etc.
 To be better off, property and power have to be acquired which results in
war.
 The more civilized society is, the more destructive wars it will engage in.
o However, society can make man free again.
 The natural instincts of a child are good but are repressed by society
 A child should be education to cultivate his self-expression through
sympathy and love in a familial rather than a school environment
 Morality must develop from natural impulses of empathy.
 More than an education of the intellect, there should be an education of
the senses.
THE GENERAL WILL
- Each person is part of a whole society
o A moral body where citizens share in the sovereign power
o People join society for improvement and sophistication
- Social contract is there to enhance man’s freedom through democratic
institutions that allow citizens to vote
o Part of the freedom that a citizen surrenders is to obey the preference of th
majority once his vote is defeated.
- Social contract creates a new corporate entity with a general will as an outcome
of a democratic process
o This requires the people to be informed and publicly spirited.
- General will
o Not the will of all or the majority
o It is the common interest expressed through laws
- Freedom is the opportunity to do what is right.
JOHN STUART MILL
THE MILL OF HAPPINESS AND LIBERTY
- Member of the English Parliament
- Harm Principle. The only purpose for which power can be rightly exercised over
everyone against his will is to prevent harm to others.
o Man is free to pursue his happiness as long as he does not harm others.
FREEDOM OF ACTION AND THOUGHT
- Freedom of action can be interfered with if a person become a nuisance to others
- Freedom of thought does not require interference for one is free to believe at his
own cost whatever he wants to believe
o Freedom of thought losses its immunity when the it has become an instigation
to a mischievous act.
UTILITARIANISM
- Philosophy of pursuing pleasure and avoiding pain for the greatest happiness of
the greatest number
o Bentham: quantity
o Mill: quantity (the law must prefer what gives happiness to the most) and
quality (satisfaction of man’s higher faculties is preferable)
- temporary pain is pleasurable if it will produce more genuine pleasure in the long
run.
- A diversified society may not always guarantee everybody’s version of happiness
but it must at least allow for its pursuit.

BEING USEFUL
- Once an obligation is assigned to a person, he can be punished for a breach of
duty
- Duty is a thing which may be exacted from a person as one exacts a debt
- Perfect obligation
o One with a correlative right that can be demanded by others
- Imperfect obligation
o No corresponding right
o Mere beneficence or generosity that one is not bound to practice
- Once perfect, moral, and legal obligations have been satisfied, one must be free
to pursue one’s choice of pleasures

HENRY DAVID THOREAU

CIVIL DISOBEDIENCE AS A DUTY
- Civilian supremacy
o Where sovereignty resides in the people and all government authority
emanates from them
- Henry David Thoreau
o Advocated civil disobedience as a duty to proactively change an oppressive
system
o Government is not necessary and people could resist and survive its absence
o He aspired for a better government (rule of expediency of government) but
no government is better than a bad government
o Believed more in self-governance than political governance.
o Those who submissively follow the law are automaton e.g. militarization

WHEN REVOLUTION IS RIGHT AND RIPE

- Right and ripe when the government’s tyranny or inefficiency are great and
unendurable
- The electoral system is useless if resistance comes from the minority
o Their votes will not have an effect
o Rather, the minority must put all their weight to resistance such as non-
payment of taxes
- To successfully resist the government, man must make himself self-sufficient and
less dependent on government provisions
- Real progress is the succession of governments from absolute to limited
monarchy to democracy to organizing the rights of man from which the state
derives its authority.