Philo 175 REVIEWER

August 17, 2017

Philosophy of law
*Discourse theory: formal discussion following the rules of logic.
Impt in decision making
In every case there are two opposing parties
*critical legal theory
Legal positivism
-There is more to law than legal formalism
Feminist Legal theory
-Why judges decide this way and not that way.

August 29, 2017

Why study jurisprudence? By John Gardner

Outline:
Meaning of "Jurisprudence"
Philo in Legal Education
Law Students
Training/Preparation of Law Students
Legal but not philosophical
Legal and philosophical
What philo can do in the study and practice of law

Jurisprudentia
Juris=law and
Prudentia=prudence (also: discretion, foresight, forethought, circumspection, refers to the exercise of
good judgement, common sense and even caution, especially in the conduct of practical matters
Jurisprudence="Knowledge of
General Jurisprudence is the science concerned with the exposition of the principles, notions and
distinctions which are common to the systems of law, understanding
-philo of law
Analytical/clarificatory juris- aims to understand the nature/essence of law
Ex: what are laws? What is the rel bet law and power/sociology? And what is the rel bet law and
morality?

1. Normative Jurisprudence- concerned with evaluative theories that provide a foundation of the
law
Ex: what is the proper function of law?
August 31, 2017
WHY STUDY JURISPRUDENCE?John Gardner

Conclusion:
Despite its seemingly intangible contributions, specific juris (philo of law) has 2 specific contributions to
law students and practitioners, namely:
a. Develop excellent argumentative/rhetorical skills
1. Widens one's horizons or provides diff ways of looking at things

There are problems in the language -> fight

Sociology of law:

September 14, 2017

objectives:
To know how las has developed at different periods in western history and
To identify the different conceptions

Outline
1. Hellenistic law (338 and 323 bc)
2. Roman law (439 bc-528-35 AD)
3. Medieval law (4th century AD to 14th century AD)
4. Renaissance Law (14th century to early 19th century AD)

Code of hammurabi of ancient mesopotamia (ca 1754 BC)

It consists of 282 provisions

1. Dealing with matters of contract, establishing for example, the wages to be paid to an ox driver
or a surgeon
2. Establishing the liability of a builder

Examples:
1. If anyone ensnare another, putting a ban upon him, but he cannot prove it, then he that
ensnared him shall be put to death.
2. If anyone bring an accusation of any crime before the elders, and does not prove what he has
charged, he shall, if it be a capital offense charged, be put to death.

1. Hellenistic Law (338 and 323 BC)

Characteristics:
1. The entire eastern mediterranean region--including Greece, Egypt, and most of western Asia
(the remains of the Persian Empire)--fell under Macedonian rule.
2. The new political conditions of the Hellenistic era had an impact on philosophy in general, and
legal philosophy in particular.
3. Hellenistic thought is a response to the new shift of power from polis to empire.
4. The hellenistic era sees increased mobility of intellectuals, as scholars migrated to new centers of
learning such as Alexandria.

1. Sophists (late fifth and early fourth centuries BC)

1. Stressed the distinction between nature (phusis) and convention (nomos), and they put
laws in the latter category.
In Xenophon (memorabilia I, 2)
Pericles replied that laws are what is approved and enacted by the majority

1. PHUSIS thinkers
1. Differing senses of the concept of phusis ("nature"):
1. Nature as default. Nature as the way things tend to be if nothing is done about
them.
2. Nature as achievement. Nature as a thing's natural state can be seen as
something that has to be achieved. Nature-as-achievement can, in turn, be seen
in 2 ways:
1. As scouring off all foreign accretions in order to get down to an original,
unsullied simplicity (cal the nature-as-recovery) or as
2. Developing one's innate tendencies in order to achieve one’s telos (end:
call this nature as completion)
3. Nature as recovery-nature as original, unsulled simplicity

September 19, 2017

Outline:
1. Hellenistic Law (338 and 323 BC)
2. Roman Law (439 BC-528-35 AD)
3. Medieval Law (4th Century AD to 14th Century AD)
4. Renaissance Law (14th Century to early 19th Century AD)

C.1. Speusippus and Xenocrates, who were the first leaders of the school, wrote
● On legislation
● On justice
● On the citizen
● On the repub
● On equity
● On the power of law
C.2. Socratic Dialogues
● Four socratic dialogues from the early academy that deal with issues of law:
○ Minos
○ On justice
○ Sisyphus and
○ Demodocus
● These works have come down to us as part

Re MINOS
The doctrines that only just laws are laws
● The comrade (313 b-c) initially defines nomos, law, as what is nomizomenon ("customarily
accepted")
● Since judgments of the state are sometimes unjust, he is driven to redefine law as the correct
judgment of the state. In socrates' words (Minos 315a): "Law wishes to be the discovery of what
is"
● "True Law is an expression of the art of kingship, which is the knowledge of which laws to pass.
Here, the criterion is objectivist rather than subjectivist: Kingship is the art of promoting the
welfare of the

Other dialogues

A) On justice
● When judges determine what is just and what is unjust, they employ a speech in the same way
that weighers and measurers employ scales and measuring sticks to determine what is heavy or
light, long or short (Socrates)

Socrates raises (but does not answer) the ff questions:

What sort of thing must justice be, in order for it to be true that speech is the tool for resolving disputes
about it?

The demodocus and sisyphus also address the question of how deliberation and debate in assemblies

1. Arcesilaus (CA 318-242 BC) and the skeptical academy

Academy came under the leadership of Arcesilaus who moved the academy in a skeptical direction,
interpreting Plato's dialogues as purely aporetic

For the skeptical academy, no philo ques can be decisively settled, so it is imperative to suspend
judgement.

1. Pyrronists
Some pyrrhonists define law as a written contract among citizens, backed by punishment (sextus
empiricus PH I. 146).
Law is demand, it is a contract bet parties.

E.1 Carneades (ca 213-129 BC)

combines both pyrrhonist and sophistic arguments.
Like the pyrrhonists, he argues that if justice were a matter of nature rather than convention, all
countries and all eras would have the same laws.

1. ANTIOCHUS OF ASCALON AND THE ANTI-SKEPTICISM

Argument:
● (1) Reason is shared in common by all rational beings
● (2) For those to whom reason is shared in common by all rational beings (1,2)
● Therefore, right reason is shared in common by all rational beings
● Law=right reason
● Therefore, law is shared in common by all rational beings
● Those who share law in common are fellow citizens
● Therefore, all rational beings are fellow citizens

Aristotle and Peripatetics

1.1 Aristotle
Law is "a sort of order, and good law is good order"
(politics 1326a), "reason unaffected by desire"
In book III of the Politics, Aristotle took up the platonic problems of "rule by the best man versus rule
acdg to laws."
A society of equals by its very nature excludes the arbitrary rule of one man
Equity is just "but not legally just but a correction of legal justice" (nicomachean ethics)

1.2 Peripatetics
After the peripatos or colonnade where the school

1.4 demetrius, strato, and lycon were all invited to foreign courts to serve as political advisors

1.5 deme (?)

September 26, 2017

1. Stoics
● Form of discussion or discipline
● After the stoa poikile or "painted colonnad" where the school met, whose founder Zeno of
Citium, was a student of crates the cynic.
● The only true law--that is, the only rule that has normative authority--is right reason (cicero)
● The stoics influenced Rome in developing its law.
Roman law (439 BC-528-35 AD)
Periods
1. As kingdoms (753 BC-509 BC)
2. As republic (508 BC-27 BC)
3. As empire

1. Roman legal devt

● Comprises more than a thousand years of jurisprudence--from the twelve tables to the corpus
juris civilis ordered by Emperor Justinian I.
A.) Before the 12 tables (754-449 bc)
"at the beginning of our city, the people began their first activities without any fixed law, and
without any fixed rights: all things were ruled despotically, by kings.

Roman law is rooted in the etruscan religion, emphasizing ritual.

Assembly when rome was a kingdom

1. Senate
2. Curiate assembly
● Primary purpose was to elect new kings and to affirm decrees issued by the kings

Assembly when rome was a republic:

1. Comitia- an assembly of roman citizens
1. They gathered to enact laws, elect magistrates, and try judicial cases
2. Tributa-assembly of the tribe
(based on only 35 tribes)
1. Centuriata: assembly of centuries

Classes:
1. Officers
2. Infantry
3. Unarmed adjuncts

The President of the centuriate assembly was usually a roman consul

1. Concilium: assembly of a specific group of citizens

E.g.

Plebeian Council = assembly where plebeians gathered to elect plebeian magistrates, pass laws that
applied only to them, and try judicial cases concerning them.

1. The twelve tables (mid-fifth century BC)

2. Terentilius Arsa, the plebeian tribune proposed that the law should be written.
Table 1 concerning the summons to court
Law 1 when anyone summons another before the tribunal of a judge, the latter
Table ii 2. he whose witness has failed to appear may summon him by loud calls before his house every
third day.
Table III. 1. One who has confessed a debt, or against whom judgment has been pronounced, shall have
thirty days to pay it in.
1. Against a foreigner the right in property shall be valid forever.
Table iv
1. A dreadfully deformed child shall be quickly killed.
2. If a father sell his son 3 time, the son shall be free from his father.
1. Females should remain in guardianship even when they have attained their
1. Other laws:
Lex canulela ( which allowed intermarriages bet patricians (mayayaman) and plebeians)
Legges Licinae Sextiae (made restrictions on possession of public lands--ager publicus--and also made
sure that one of consuls is plebeian)
Lex oguinia
1. Roman Legal Science (Gnaeus Flavius) around the year 300 BC the formularies containing the
words which had to be spoken in court in order to begin a legal action.

September 28, 2017

Lex Oguinia: plebeians received access to priest posts
Lex Hortensia: verdicts of plebeian

Lus honoroarium and Praetoric Law

lus honorarium, defined as:
"The law introduced by the magistrates who had the right to promulgate edicts in order to support,
supplement or correct the existing law." (honorary law)

Praetoric Law:

Classical Roman Law (1-250AD) Roman law and roman legal science reached the

Jus scriptum & jus non-scriptum: written & unwritten law.

Jus commune & jus singulare

Jus singulare (singular law) is special for certain groups of people, things or legal relations (because of
which it is an exception from the general principle of the legal system) unlike general, ordinary, law (ius
commune)

1. Procedural laws for Roman litigation

1. Legis actiones
2. Formulary system and
 3. Cognitio extraordinarem

2. Influences of Roman Law

7.1 In the east

● When the center of the empire was moved to the greek east in the 4th century, the codex
theodosianus was a codification of Constantian laws.
● The codes of Justinian, particularly the Corpus Juris civillis continued to be the basis of legal
practice in the empire throughout its so-called byzantine history.
● Leo III ithe Isaurian issued a new code, the Eclog, in the early 8th century.

7.2 In the West

In many early Germanic states, ethnic Roman citizens continued to be governed by Roman Laws for quite
some time, even while members of the various Germanic tribes were governed by their own respective
codes.

This was done mainly thru the works of glossars who wrote their comments bet lines (glossa
interlinearis) or in the form of marginal notes (glossa marginalis). From the time, scholars began to study
the ancient Roman legal texts, and to teach others what they learned from their studies.

The center of these studies was Bologna. The law school there gradually developed into one of Europe's
first unis. The students, who were taught Roman law in Bologna (and later in many other places) found
that many rule of Roman law were better suited to regulate complex economic transactions than were
the customary rules, which were applicable throughout Europe.

For this reason, Roman law, or at least some provisions borrowed from it, began to be reintroduced into
legal practice, centuries after the end of the Roman Empire.

1st law school: Padua. What was taught there: roman jurisprudence.

1. Medieval Law (4th century AD to 14th century AD)

2. 1. Early Middle Ages
1. St. Ambrose
The Mosaic Law-- a law of sin and death --was given because man failed to obey the law of nature. The
fact that many legal institutions such as slavery and private property, deviate from this ideal law does not
necessarily imply that they are unjust or illegitimate; for the natural laws adapted to man only in a
condition of innocence.

C. Isidore of Seville

1. Hegelianism and the historical school

Hegel
Conclusions:
I. Ancient greeks
--were the first to recog the importance of philo in the study and practice of law. They provided the
concepts, principles and theories on law.
II. Ancient romans
We owe them the many methods, approaches, and systems of law we have. They were the first to
classify.

III. Medieval Thinker

discussed law by invoking their knowledge of the ancient greek law, ancient roman law and christianity

Renaissance thinkers
Enhanced the study, practice and teaching of law by applying the diff epistemological techniques during
that period.

Implications on modern law

--many of the substantive and procedural laws as well as jurisprudential...

Vi. History of law in the western world= history of western legal philo

Vii. Factors leading to western legal philo

1. Ancient greek law and legal thought
2. Roman jurisprudence.
3. Major religions.
1. Judaism
2. Islam
3. Christianity

October 10, 2017

Legal systems
2. Common or case law
· Central source of law-decisions by judges of courts of law and similar tribunals
· Doctrine: stare decisis (from the maxim “stare decisis et non quieta movere” [to stand by
decisions and not disturb the undisturbed])
· Courts should generally abide by precedents and not disturb settled matters.
· When Stare Decisis is applied: When pending case is directly in point with a previously decided
(precedent) case.
· “Directly in point” means:
o The question resolved in the precedent case is the same as that to be resolved in the
pending case;
 o The resolution of that question was necessary to the disposition of the precedent
case
o The significant facts of the precedent case are also present in the pending case
· Exceptions to Stare Decisis
· A.) matter of first impression
· B.) equity
1. Civil or code law
a. Central source of law: codes of law such as constitution or statuses
b. Doctrine: Jurisprudence Constante
(a long series of previous decisions applying a particular participation of law is impt and may
be determinative in subsequent cases)
2.
3. Customary Law
· Central Source of Law; body of norms called “customs” Customary Law
(e.g. barangay conciliation panels)
4. Mixed Legal Systems
In which two or more legal traditions, or parts of them, are operating simultaneously within a
single system.

October 19, 2017

The nature and importance of a theory of law

What is a theory: an ‘organized’

○ ''Theoros'' was used in Classical Greece to indicate the official delegate who was
dispatched from the city-state to attend intercity athletic games, especially the olympic
games.
○ He was not to participate in those games, only to observe them.
○ Gradually theoros was used to refer to any spectator at the Games, official or unofficial,
in contrast with a participant.

○ What is a theory of law

An explanation of the nature of law and provides an account of the nature of law.

Characteristic of a successful theory of law

Consists of propositions abt the law which are necessarily true and
They explain what the law is

Problems of this thesis (characteristics of successful theory of law)

● * this suggests that laws has essential properties.
○ What is true of the law is necessarily true whenever and wherever it is to be found
○ But what exists is that the nature or concept of law is changing.
● Joseph raz "can there be a theory of law?"
 ● Natural Law theory
○ Thesis
○ "Law is an ordinance of reason for the common good, made by him who has care of the
community and promulgated."
○ Ideas on higher law
○ A. Sophocle's Antigone
● Antigone speaks of a higher law that req her to bury her brother Polynecies, despite the order
from Creon forbidding the burial of rebels in the civil war that had afflicted Thebes.
○ Nuremberg Trials in World War II
● The trials of the 24 chief nazi war criminals November 1945-October 1946 by an international
military tribunal consisting of four judges and four prosecutors: one of each from the USA, UK,
USSR, and France.

● At the nuremberg trials, problems of jurisdiction prevented the crimes from being prosecuted
under the laws of any one of the participating nations.
● These problems were solved by calling the indictments "crimes against humanity"

● Postwar courts in Germany recognized the need for higher law in cases about the restoration of
property

○ Positive in the term supra-positive, refers to a law that has been posited by human
authority
○ Martin Luther King, Jr.
○ Jose abad santos:
○ served as chief counsel, pres of senate, pres of speaker of HOR of the Phil, became SC CJ
1940
○ Ancient greek ideas of nature
○ Pre-socratics

November 2, 2017

Natural Law Theory

IX. Elements of law

A. Ordinance of Reason
● And the rule and measure of human acts
● Law cannot come from impure reasons.
● When you make use of your knowledge, your theoretical reason becomes practical
reason/knowledge.
● The content of law must be above reason
B. One in charge of community
a. Law must come from one who is in charge of community.
 b. "And therefore the making of a law belongs either to the whole people or to a public
personage who has care of the whole people."
c. "A law is an ordinance of the people, whereby something is sanctioned by the Elders
together with the community." (from St. Isidore of Seville)
C. Common good
d. The issuance of the law by a legitimate authority must be for the common good.
e. Aristotle:
f. Human Flourishing, improvement of one's being.
g. Since people are part of a community, this happiness (eudaimonia), must be found
within the community, and law then is something that is directed to the entire human
community and the means of leading to this happiness (eudaimonia)
"Taxes are the lifeblood of the state"

D. Promulgation
a. "lex" is derived from "Legere" (to read), that is, it must be written in order to be
enforced (St. Isidore of Seville)
b. How if not promulgated by publication?
i. The conscience makes one aware of the elements of natural law and gives us
inclinations
X. Typologies of law
A. External law
○ God's wisdom in both planning and then creating the universe.
B. Natural law:
○ Rational creature's participation of the eternal law
C. Human/Positive Law
○ Reflective of natural law devised by human reason
D. Divine Law
○ The will of God as revealed in the scriptures
○ Necessary for four reasons:
○ (1) humans need explicit divine guidance on how to perform proper acts
○ Uncertainty
○ Humans need divine insight on issues on which they are not competent to judge
XI. Unjust law
1. Perversion of law