Introduction to Law (Midterms Reviewer

Rica Dominguez

Introduction to Law

Definition and Nature of Law:

“that which is laid down, ordained, or established. A rule or method to which phenomena or actions co-exists, or
follow each other accordingly. That which must be obeyed or followed by citizens , subject to sanctions or legal
consequences.” (Black’s Dictionary)

Natural Duty to Obey the law

1. A natural duty is one that arises because one is a person or a member of a society, or because one
occupies some narrower status, such as that of parent.
2. What citizens owe more generally to their rulers and fellow citizens.

Five Theories

A. Traditional Natural Law

- Claims that human law is in some sense derived from moral norms that are universally valid and
discoverable by reasoning about human nature or true human goods.
- According to John Finnis in his book, Natural law and natural rights
 laws are rules for the common good, the common good embracing the good of
individual members of the community
 Human beings need authority and rules to coordinate activities of any complexity, to
guide those who are ignorant, and to curb antisocial selfish inclinations.
 Political authority and the law of the state are thus necessary to promote human
flourishing and are natural institutions to promote the common good. Since individuals
have a duty to promote the common good, they have a duty to support those who
exercise political authority and to obey valid laws.
 One aspect of action for the sake of the common good is being a "law-abiding citizen"
and to be a law-abiding citizen requires obeying the law even when one does not see an
independent reason to do what the law requires.
 Law is the rules for the common good; basic human goods, including practical
reflection, life, knowledge, play, aesthetic experience, sociability (friendship), practical
reasonableness, and religion.
 Common good = notion of reciprocity
 The promotion of the community's common good involves the promotion of the
good of each member. Thus in being a law-abiding citizen, someone is contributing
towards the effectiveness of an institution that is necessary for his own welfare.
His duty to obey the law is related to the benefits the existence of law confers on
him.
 Introduction to Law (Midterms Reviewer
Rica Dominguez

- 2 distinctive features;
 An obligation to obey the law can be generated from all sorts of government.
 treating effectiveness as the most critical ingredient of authority with this natural
obligation to obey can arise under all sorts of governments.
 Particular unjust laws do not generate such obligation.

B. Natural Duty to Support Just Institutions

- According to John Rawls, a natural duty to promote and support just institutions is the
general moral basis for obedience to law in a nearly just society.
i. Principle of Justice in the Original Position
1. Justice resides on the original position chosen by people who lack
awareness of their social status, talents, and the like. This people refuses
utilitarianism for it is still inequality in nature.
2. Acknowledgement that that were to live in a just political order they would
have a duty to support that order.
ii. Principles of Social Justice (For societies capable of fulfilling the basic wants of
individuals,
1. the priority of equal liberty, fair equality of opportunity, and the allowance
of differences in wealth and organizational power only if these serve the
interests of the worst-off class of society is a factor to obey the law.
2. “"first, we are to comply with and to do our share in just institutions when
they exist and apply to us; and second, we are to assist in the establishment
of just arrangements when they do not exist, at least when this can be done
with little cost to ourselves.
3. Necessarily includes the principles of majority rule -- just political
institutions will include a principle of majority rule, and majority votes are
bound to produce some results that minorities regard as unjust, putting up
with such laws is the price of effective majority rule. The duty to support
just institutions will include a duty to obey even laws that are unjust, so
long as they "do not exceed certain limits of injustice."

C. Natural Duty in Nearly Just Societies

- What about members who deem their societies unjust? It may depend on the gainers or
losers from injustice.
- If a society falls short to obtain justice, citizens sticks to those that have historical conflicts
and resentments than those that doesn’t have assurance of attaining just society.
 Introduction to Law (Midterms Reviewer
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D. Content of the Duty to Support Just Institutions

- that the duty to support just institutions generates a general duty to obey the law

Three elements:
a. Compliance with just institutions that apply to us
b. Contributing our share to just institutions
c. Promoting just institutions where they do not exist

NOTE: Simons challenge, that we have a special duty when just institutions apply to us. He points out that
usually a moral duty of support does not arise simply because an institution, say a professional association,
purports to apply to us; we must voluntarily accept the application of the institution before such a duty arises.
He then, pointedly concludes that citizens would then have no special duty to support the just political
institutions of their own countries in comparison with the just political institutions of other countries.

OTHER INSTITUTIONAL CLAIMS:

1. Philip Soper (see Respect for Officials Exercising Authority)

a) Respect the good faith efforts of those exercising authority
b) It must be extended to citizens who contribute to the maintenance of law
c) Respect for officials exercising authority

2. Tony Honore
a) Duty is based on necessity (see necessity as a ground for duty)

E. Necessity as a ground of duty (Tony Honore)

- Certain relationships give rise to special duties in the absence of any voluntary act.
- Responsibilities arise because physical proximity or convention places individuals in the
position of being counted upon to render care; the individuals have genuine moral duties to
satisfy those expectations. An example is a “need to be cared for or supervised” (alien
residents), uncle looking for a niece, etc
- The basic idea is that the state is in the position of badly needing the citizen's support
reflected in compliance with law; out of the state's need, and the performance of its own
duty to care for the citizen, the citizen's duty to comply flows.

F. Respect for Officials Exercising Authority

- since coercive government is necessary for human beings, those who try to govern in the
interests of their subjects are not committing a moral wrong against them. Subjects should
respect the good faith efforts of those with authority to govern in their subjects' interests
and a crucial way to show this respect is by obeying their directives. Subjects have a prima
facie (first impression) obligation to obey the law because those with authority care about
whether the law is obeyed and they deserve respect.
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Rica Dominguez

i. Ex: A sensitive daughter in a good family recognizes the need for parental authority,
and understands that her parents are trying to exercise their authority in her
interest.

G. Underived Obligation to Obey the law

- According to John Mackie, the obligation to obey is significantly connected to other moral
principles, and might be defended in part in terms of a "coherence" justification that draws
from other norms of reciprocation.
i. Denies an objective morality
ii. There is no universal moral norm
iii. There is a reciprocal norm
iv. For an individual, there is desirability of law and its observance = a non-
consequential principle in every application of the law.

H. Common Threads

- Each theory rests on the importance of government for human life and the need to obey it.
- Each posits some reciprocal relationship of benefits and duty
- In each obedience is positively valued because it contributes to a social objective
- In each, the good consequences of widespread obedience underlie the duty to obey
- Except Soper, duty is stringent than moral reasons even when disobedience causes no harm
or obedience achieve no good consequences.

4 KINDS OF LAW

1. Eternal Law
- God’s perfect plan, not fully knowable to humans. It determined the way things such as
animals and planets behaved and how people should behave.
2. Divine law
- Bible – God speaking to Jews, son of God teaching, giving parables, commanding
3. Natural Law
- Spark of divine, we can know through right reason
4. Human Law
- Ordinance of reason for the common good. It may vary according to time, place, and
circumstances
 Introduction to Law (Midterms Reviewer
Rica Dominguez

RULE OF HUMAN BEHAVIOR OR CONDUCT/DUTY TO OBEY THE LAW

3 IMPORTANT THINKERS/PHILOSOPHER

1. Thomas Aquinas
A. Euthypro Dilemma
a. Moral standards is equal to God’s Commands , or Morality is not equal to God

2. Immanuel Kant – REASON IS THE ORIGIN OF CONCEPTS AND PRINCIPLES

A. Free will
b. “Free will and a will under moral law is one and the same”
c. Free will is not equal to reason
d. There are two types of reason; theoretical and practical
e. Theoretical reason is not equal to practical reason

B. Critique of Pure reason (Book)

a. Concepts of god, immortality of soul and free will is unattainable by theoretical reason
b. Practical reason (guided by principles) tells us to accept them as priori knowledge
(necessary & universal knowledge) not as posteriori knowledge – experience

C. Categorical imperative (fulfillment of duty)

a. It is the moral principle given by reason and states that we may act only in such a way
that the maxim of our action, i.e the principle governing our action, could be willed as
universal law.

3. Friedrich Nietzche
A. Ascetic ideal (On Genealogy, Analogy, Logic)
- Western philosophy, religion, morality or other values system is equal to ascetic ideal
Ascetic ideal – suffering plus meaning or purpose (we suffer to find meaning and purpose)
RESULT IS SLAVE MORALITY + delayed rewards or gratifications

B. Nihilism
- Meaninglessness of virtues, truth, honesty
- God is Dead (Book: Thus spoke Zarathustra)

C. Ubermensch (Superman or overman)

- Need something to take the role of God. Need to strive for our own evolution focusing on
what the world has by creating our own mentality based on experiences.
- The person who could accept recurrence without self-deception or evasion would be a
superhuman being.
 Introduction to Law (Midterms Reviewer
Rica Dominguez

D. The Will to Power

a. Neither good nor bad (New Morality)
b. Sublimation of the will to power by creative activity
c. Self-overcoming “your real lies not deep within you but high above you”

E. Doctrine of Eternal Recurrence

a. How well disposed would a person have to become to himself and to life to crave
nothing more fervently that the infinite repetition, without alteration, of each and every
moment? (Repetitive experience)

MORFE VS. MUTUC

FACTS:

The question raised in these certiorari proceedings is the scope to be accorded the constitutional immunity of
senators and representatives from arrest during their attendance at the sessions of Congress and in going to
and returning from the same except in cases of treason, felony and breach of the peace.

Petitioners Manuel Martinez y Festin and Fernando Bautista, Sr., as delegate of the present Constitutional
Convention would invoke what they consider to be the protection of the above constitutional provision, if
considered in connection with Article 145 of the Revised Penal Code penalizing a public officer or employee who
shall, during the sessions of Congress, "arrest or search any member thereof, except in case such member has
committed a crime punishable under [such] Code by a penalty higher than prision mayor."

Both petitioners are facing criminal prosecutions, for falsification of a public document and for violation of the
Revised Election Code.

The Solicitor General dispute such a contention on the ground that the constitutional provision does not cover
any criminal prosecution being merely an exemption from arrest in civil cases, the logical inference being that
insofar as a provision of the Revised Penal Code would expand such an immunity, it would be unconstitutional.

ISSUE: Whether or not senators should be immune from the criminal charges.

HELD:

No. As is made clear in Section 15 of Article VI of the Constitution, the immunity from arrest does not cover any
prosecution for treason, felony and breach of the peace. Treason exists when the accused levies war against the
Republic or adheres to its enemies giving them aid and comfort. Breach of the peace covers any offense
whether defined by the Revised Penal Code or any special statute.

It is a well-settled principle in public law that the public peace must be maintained and any breach thereof
renders one susceptible to prosecution. There is a full recognition of the necessity to have members of
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Congress, and likewise delegates to the Constitutional Convention, entitled to the utmost freedom to enable
them to discharge their vital responsibilities.

When it comes to freedom from arrest, however, it would amount to the creation of a privileged class, without
justification in reason, if notwithstanding their liability for a criminal offense, they would be considered immune
during their attendance in Congress and in going to and returning from the same. There is likely to be no dissent
from the proposition that a legislator or a delegate can perform his functions efficiently and well, without the
need for any transgression of the criminal law. Should such an unfortunate event come to pass, he is to be
treated like any other citizen considering that there is a strong public interest in seeing to it that crime should
not go unpunished.

Article 8 of the Civil Code

“Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal
system of the Philippines.”

FOUR SENSES OF PUBLIC- PRIVATE LAW DISTINCTIONS

Legal regulations, according to Barnett, depends on the distinction of Public and Private Law. It doesn’t have a
general framework but rather patterned to whether private or public law was implemented. On the article,
Barnett, distinguished private and public law.

Legal regulation pertains to the human conduct being subjected to some form of regular control or constraint
based on general rules or principles. Legal regulations’ application varies differently if its public or private law.
Listed are the said senses on how to distinguish public and private laws.

First sense is the kind of standard being applied to individual conduct. Public law is those that presents public
good or restricts public harm. Private laws are of private benefit, or stops private individuals harm. When this is
properly distinguished, legal regulation is followed accordingly as to whoever it benefits as long as it serves the
good. However, an exemption is made, it is said that some acts that arguably violate both law simultaneously
which are said to be "offenses against society" may be considered sufficiently "public" in nature to be classified
as crimes.

Second way to distinguish is that, public laws are causes of action that are usually brought by governmental
authorities. "Private law" actions are those usually brought by the private individual who was harmed (or her
representative or heirs). When this distinction is employed, the same standards may be applied in either realm.
What distinguishes public from private law in this sense is who has standing to complain of violations of the
standards.

A third sense is the nature of the parties who are subject to legal regulation. Public laws are laws that are
meant to regulate the internal conduct of governmental authorities and that define their relationship or duties
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to private individuals while laws that define the rights and duties that private individuals and groups owe to each
other "private law."

The last public law-private law distinction concerns the proper institutional framework for applying and
enforcing legal regulation. It asked the important question whether the formulation of legal rules and the
adjudication of disputes are performed by monopolistic or governmental institutions or by non-monopolistic
competitive institutions? Here,"public law" would refer to monopolistically or "publicly" provided legal
regulation. "Private law" would refer to legal regulation by "private" or non- monopolistic legal institutions.

Retrospectively, legal regulations are subject to whether a law is private or public, which can be classified based
on the senses stated above. Legal regulations are then to cover whether of general population or of certain
individuals but nonetheless, even law is public or private its main purpose still remains to promote the common
good.