Legal Philosophy Notes:

Theocracy

Equality

Positive discrimination case

Benevolent neutrality v. strict neutrality

Benevolent neutrality accommodates the different religious beliefs

Strict Neutrality Strict separation between state and church

Burchfell v. Hudges

- He wanted to be recognized to be a spouse. However, the state denied such.

- (What is the Object of Marriage:
- Ultimate form of love is Marriage: The fulfilment of commitment

Case of 2 women April and Jade adoption (cited in Burchfell v. Hudges)

Zones of Privacy (Singapore/US)

- Such as privacy of choice

- Decriminalizes adultery
- State cannot meddle

Marriage as an institution

- In relation to the issue of the same-sex marriage, it offends the Philippine Statute

Doctrine of evidence

Common Experience of mankind - that evidence to be believed must proceed not only from the mouth
of a credible witness but must be credible in itself as to hurdle the test of conformity with the knowledge
and common experience of mankind.

Remedial Law

- Numquam ponenda est pluralitas sine necessitate (Do no posit so many things
unnecessarily)
- RULES OF EVIDENCE gives a list of ’disputable presumption’ (assumed true until contradicted
by other evidence)
Knowledge is Power by Francis Bacon (Father of Experimental Science also known by Jurists as Father of
Modern Jurisprudence)

- Discovered INDUCTIVE METHOD

o Proposed scientific work for charitable purposes to alleviate man’s miseries
o Method to justify the use of precedence in common-law, which he termed as
unwritten law
o Unwritten law is then applied to related cases and is applied as logical principles
o Stare decisis or to stand on what has been decided
 Cases must be adjudicated alike by appeal to precedent (since past case
becomes an authoritative guide in deciding new cases)
o Requirements for INDUCTIVE METHOD
 Accumulation of particular empirical observations in a tabulation or
repository
 Inductively inferring lesser axioms
 ‘’ inferring middle axioms
 And then proposing the most general of notions (careful
observation of individual/particular cases, arrive into a premises and
general rules)

SPECIMEN- the entity being studied

Specimen= cases decked in the rulings of the court

o Method for law is like Science for Bacon:

 1st observe facts
 Record observations
 Amass or gather a body of data
 Perceive the general law at work
 Test the Hypothesis
 Experiment/application of the hypothesis
 Arrive into a new law
 (Then you can apply to new
cases)
- Warnings made by Bacon in terms of Making Judgement “The four idols”
 Idol of the Tribe
 Referring to illusions of appearance and reliance on our Primitive
Senses
 Idol of the Cave
 Referring to generalization of our limited caved experience
 Idol of the Market
 Referring to the imperfections coming from the choice of language
and communication
 Idol of the Theater
 Flaws of the Philosophies theories and Speculations
David Hume: Exhuming Evidence by Presumptions and Probabilities

- we favour probabilities due to “CUSTOM”

 erring more to the possible when it comes to our judgement
 evidence of past experience
- “X X X a wise man proportions his belief to the evidence”

- Hume’s Fork
 Useful in being sceptical of given evidence
 Establishing the cause and effect of events and how things must have
happened
o Efficient Cause
 An act or event for purposes implication liability

Ludwig Witgenstein

- Tempered Hume’s Scepticism on cause and effect by criterion of “common sense” and
“healthy human understanding”, RELEVANT TO RULES OF EVIDENCE and is referred as
conclusive presumptions (matters that can be taken without the need of evidence)
- Hinge Proposition
 doubts or suspicions on common sense matters are “motivated”
 indicated certainty more than a doubt

Coccam’s Razor
LEX MERCATORIA

Rules practice by the Merchant Guild

Commodities market

*Businesses can agree on arbitration rather than going for a local litigation

CHAPTER ix CHAPTER X

CH IX Political Law

“Right”

- a modern concept
- brought by libertarian revolution
- inspired by reformist philosophers who believed in a govt consent

Malolos Constitution & 1935 Phil. Constitution

- adopted the American Bill of rights and its liberal philosophy

Social Contract Theories

- Believed that the fundamentals of the society brought about by conventions and
agreements, tacit

MACHIAVELLI

- Classic power pundit

- Son of an Italian lawyer
- Wrote the Prince and Discourse

Tips on how to rule asccdg to Machiavelli

1st If ruler cannot be good always, he must at least pretend

2nd Two ways of fighting: By law (to man) another by force (to brutes)

3rd leader should shower the favors but should delegate the Punishments (also called the Black knight
Principle)

4th It is good to be both loved and feared; better be feared than loved, but not be hated

5th Punishments should be done all at once so that seldome felt will be less remembered./ Cruelty once
in a while, will sustain fear but not hatred

6th Ruler must be shrewd and swift to match the inconsistinsies of people and political environment./
Flexible enough to adapt to social trends
7th The end justifies the mean./ If he succeeds the people are with him and if he fails they will be against
him

He also wrote the Discourses (talking about the incompatibility of Christianity and good governance)

Virtu or Virtue for Politicians

o Wisdom
o Strategy
o Strength
o Bravery
o And when necessary Ruthlessness

Hobbes on Sovereign Immunity

Hobbes

- Wrote Leviathan (talks about why one must obey authority) (explains the legitimacy of the
authority)
- Conservative
- Follows the Philosophy of Positivism

Transition from Divine Rights Theory to Social Contract Theory

Social Contract Theory

- Holds power from the people

- The “commonwealth” (not for his own good) but to maximize the interest of all
- People hand their sovereignty over their rulers by putting them into power, part of the
terms is to follow their rules
- Mutual respect between power and obedience

Sir Thomas More on Republicanism and Family as the basic unit of Society

Thomas More

- Believed in the fallen corrupt nature of men

- A Pillar of Republicanism
- Catholic Patron saint of lawyers
- Argued that a good ruler would be like a father to his children, rather than a master to his
subject
- Staunch Catholic statesman that believed in separation of state and the church but not the
absence of morality or conscience in politics
- Utopia
Unlocking Inalienable Rights

John Locke

According to Locke

- Civil Government is made for general convenience

-

Rousing man to be free

LABOR LAW

Karl Marx

- Father of Communism
- Studied law and philosophy
- Exposed the conflict of the upper bourgeoisie

Labor Rights

- Minimum wage
- Working hours
- Leave benefits
- Rest days
- Security of tenure
- Collective bargaining

(HOW TO ANSWER ESSAY- TYPE EXAMS)

OBJECTIVE:

THINGS THAT NEED TO BE ACHIEVED TO GET HIGH MARKS

TO KNOW WHAT THE EXAMINERS WANTS YOU TO WRITE

- Knowledge and understanding of the law (law)

- Understanding of the facts and issues (logic)
- Presentation of ideas (language)

Characteristics of a good answer

- Focus
 oShould be purposeful and directed. It should answer all parts of the questions
directly
o Identify the issue of the case. Answer should focus on the issue
o Each sentence has a purpose in the development of the answers
o Observe coherence and cohesion
o (adding random unrelated idea will take the focus away from the answer the
examiner is looking for resulting to reduction of points)
- Structured
o Knowing the answer to the question will not matter if you cannot communicate your
idea properly. The ability to communicate that knowledge depends on how you
structure your answer
o Syllogism
o Basic Syllogism is TRAC
 Examinees who do not observe the rules of the English language are
often thought to be less knowledgeable
 Even if the answer has all three previous elements, the examinees
score will be less if the use of language, spellinh, sentence structure
and handwriting will make it difficult to understand
- Supported by authorities
- Well Presented

Tips

- Understand the question

o Determine what the examiner is asking for. Oftentimes the questions are crafted to
lead the students to the answer. Be mindful to distractors
- Plan the Answer
o Master the answer format for each type of question to make planning faster
- Convey ideas in a structured manner
- Use relevant terminologies properly
- Support your answer with authorities
o Observe the Hierarchy of courses
- Weave the laws or rules to the facts

Things to Avoid

- Writing too much or verbosity

o Strive to keep sentence simple
o Rule of thumb: 10pts (1 page), 5pts (1/2 page), 2-3 pts (2 to 3 sentences)
- Writing a good answer to the wrong question
o Some examiner might give you points for knowledge. However, if there is time
constraint in checking the examiner will disregard answers not related to the issue
- Expect
- Changing or adding your ownt the facts
 o Stick to the facts provided by the examiner
o IF facts are insufficient

Types of essay questions

- Situational or problem type

o Simple application of the law
- Q w/ a qualified answer
- Distinguished
- Definition
- Describe discuss or explain
o Expounding the subject