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LEGAL PHILO | Macky . t(-.

-t)

DEFINITION LAW ETC. MORALITY/JUSTICE/STATE


TELEOLOGICAL PERSPECTIVE - The law is ordained for the fulfillment of - NATURAL LAW BASIS: the universal
the precepts of the natural law namely, discipline of virtue impressed in the heart
righteousness, justice fairness and and mind of man to guide him in the
equality exercise of his rights, in the performance
- Achievement or realization of these of his obligations, in the observance of
precepts in the legal order is the TELOS of rules, and in the preservation of order and
the law. unity.
- Telos - Greek for "end", "purpose", or - PRECEPTS: RIGHTEOUSNESS, JUSTICE,
"goal“ EQUITY, AND FAIRNESS
- not considered divisions of the law but
its very perfection.
- good legal order can be deduced from
natural law
- universally valid for all people

A. Greek Concept -Socrates, Plato, and Aristotle believed Socrates’ Absolute Justice
that the main condition of life in society is Two Principal Considerations:
GOOD FAITH which means human beings 1. No person is intentionally bad or evil
have a basic concept of JUSTICE enabling because of the knowledge of justice.
them to distinguish between right and 2. Only a temperate person knows himself
wrong. or herself and thus, able to bring his or
- Art. - 19. Every person must, in the her emotions under control.
exercise of his rights and in the
performance of his duties, act with justice, Plato’s Rational and Universal Justice
give everyone his due, and observe - Exist in the mind, even though not seen
honesty and good faith. (Civil Code of the in fact or performed
Philippines)
Aristotle’s Practical Justice
- Justice must be understood in the sense
of what is FAIR and EQUAL.

B. Roman Concept - Roman jurisprudence subjected it to - Conception of justice began to have a - Gaius advocated for a continuous effort
technical analysis and endorsed it with definite legal content. of removing harmful and useless rules of
their authority and practical genius, unlike law.
the Greek’s concept of nature of law 1. Reexamination by the lawmaking
which was only a philosophical bodies every once in a while.
speculation. 2. Any abnormality in the legal order
could be adjusted to comply with the end
and purpose of the law.

C. Aquinian Concept - Like Socrates, St. Thomas Aquinas - St. Thomas Aquinas thought of the law Two concepts of Justice:
believed in the rational capacity of man to as an institution ordained by God. The 1. Justice as an ethical virtue
know the absolute good. Greco-Roman notion of impersonal nature 2. Justice as juristic norm
as the ultimate source of laws was
substituted by the power of God who
governs all things by the rational
arrangement and distribution of His divine
providence.
- Public welfare or common happiness is
the first concern
- Task to maintain public welfare belongs
to either the people in general or the
person who is delegated by the sovereign

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LEGAL PHILO | Macky . t(-.-t)

DEFINITION LAW ETC


D. Kantian Conept Transcendental Philosophy (Kant) Principle of Rightness: Ethical ought vs. Legal ought
-Learning or understanding determined by - The precepts of natural law are not - Kant employed the “ethical ought”
the mind itself prompted by sense-experience but by because this standard involves moral
- A priori knowledge: not gained through ethical attitude to do what is right and motivation
experience avoid what is wrong
- Ideas formed in mind independent of - Righteous person: one who can attain
feelings and inclinations freedom from the arbitrary power of his or
her physical senses
Critique of Pure Reason (Hume)
- Based on senses/experience - LAW, to be an effective means of social
- Theory based on skeptic philosophical control, must be based on the a priori
tradition and empiricism precepts of natural law.
E. Utility Supplement Utilitarianism Nature of law based on: - The worth of a conduct is based on its
-Act in a way with best consequence 1. Pleasures ought not to be sought consequences to individual interest
- Happiness as the measure of goodness 2. Pains ought to be avoided
or badness of acts and their consequences “What pleasures ought not to be sought
based on the hedonistic calculus and what pains ought to be avoided
(pleasure)
- Law is a system of social control
directing and governing persons to the
maximum happiness and to the minimum
of misery
- “Purpose” is the prime mover of law
- Law is shaped by the purpose of society
F. Hegelian Concept - The usual application of the Hegelian Neo-Hegelian Twist Modern Teleological Analysis
concept is individualism and collectivism, - The Neo-Hegelians regard the law as the 1. Juristic approach- knowledge of right
both are reconciled by means of the power of dictatorship of the Leader, where and wrong or good and evil that is relative
principle of identity or the lawness, the there is no separation of powers of to the changing conditions of time, place
resulting synthesis becomes the government. In effect, this means that the and people.
embodiment of the reconciliation of the law and the will of the Leader are one and 2. Ethical relativity- all law, good, right,
opposing views or ideas into a concrete the same. are relative to other transitory values and
concept. Essential Attributes of the law conditions.
1. Greco Roman Aquinian Viewpoint – 3. Interest of the State- . It can only be
- The Hegelian concept held that all Right reason in relation to justice and agreeable to the members of the
concepts are actualized by this evolutive equity is the essential attribute of the law community as a whole when it is not
process, that is to say an idea (thesis) 2. Utilitarian Point of Observation – destructive of the state since the latter is
may evoke an opposite idea (antithesis) Greatest happiness of the greatest the recognized protector of the liberties
and out of their reconciliation or number in the community and of the people.
identification emerges a third possibility – 3. Modern teleological analysis- the free
a new idea (synthesis). This synthesis willing thinking individual living in a
shall be the prevailing idea until an changing society
opposite idea appears and reconciliation - No rigid/single formula for application of
of the struggle of ideas is again law; constant change
necessary.

FUNCTIONAL PERSPECTIVE - Fundamental focus: analysis of the Social engineering - Criticism of Abstract Values
characteristic action of the law in the - Legal order to decide which among - Criticism of Legal Positivism
solution of conflicting wants in terms of conflicting interests should be prioritized
the interests of society - Law: social phenomenom Goal
- The thrust of this juristic school is to - Serve the jural postulates and express
inquire into the role of the social interests the social interests and incorporate these

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in the adjustment and reduction of in the formulation of law
conflicting claims, demands and
expectations of the people.
- Functional jurisprudence is a strong
reaction the idealism of both the historical
and teleological perspectives of the
nature of the law.

DEFINITION LAW ETC


LEGAL FORMALISM - Formalists believe that a judge identifies -Assumes that the law is a system of rules
the relevant legal principles, applies them that can determine the outcome of any
to the facts of a case, and logically case without reference to external norms
deduces a rule that will govern the -It is characteristic of the positivist
outcome of the dispute. perspective of the nature of the law. It is
- The most obvious characteristic of legal criticized as a simplification of legal
formalism is the purported separation of reasoning. In this rigid model, the decisive
legal reasoning (or "application" of norms legal rule serves as the major premise,
to facts) from normative or policy the material facts constitute the minor
considerations. Legal formalists argue that premise, and the decision is reached
judges and other public officials should be strictly by deductive reasoning. In other
constrained in their interpretation of legal words, decisions are said to inevitably
texts, suggesting that investing the follow the basis of stare decisis.
judiciary with the power to say what the
law should be, rather than confining them
to expositing what the law does say, “Conceptualism”
violates the separation of powers. - treats law like math or science

LEGAL REALISM The term “Modern Legal Realism” à - all law is made by human beings and, Social
describes the experiential outlook of this thus, is subject to human frailties and Legal Realism vs. Natural Law
perspective, Not based on metaphysical imperfections; it should not be rigidly - Natural law was “the law above the law.”
speculations or morality adhered to when it does not work, It is a theory founded on the philosophical
- “Pragmatic Jurisprudence” practically and legal belief that all humans are
- In short: Legal realism seeks to - Therefore: the law should be anchored governed by basic innate laws, or laws of
emancipate the law from its shackles to on human experiences – past and present nature.
formal and mechanical modes of à For law is made by men for men, laws - Legal Realism is founded on the belief
deductive thinking should serve men and not the other way that man makes up his own law. Instead
- Legal realists sought to freshen it up to around of consulting universal
keep abreast of the times by applying to it - Basis of law: The law derives its life from
continuously the pragmatic test of social human experiences and inexperiences;
consequences the law must be pliant to accommodate
such sources

A. Social Legal Realism: John Dewey - Based on John Dewey’s philosophy of - Until law is set into operation in the field Legal Realism vs. Natural Law
education: “learning by doing” modifying and/or maintaining human - Natural law was “the law above the law.”
(experiential learning) activities as going concerns, there can be It is a theory founded on the philosophical
- Dewey: knowledge is part of life- no law in real sense and legal belief that all humans are
experience involving the “intercourse of a - Law becomes an instrument of social governed by basic innate laws, or laws of
living being with his physical and social control nature.
environment” - The use of sanctions for the attainment - Legal Realism is founded on the belief
- Learning becomes effective when of social ends that man makes up his own law. Instead of
coordinated with experience APPLICATION consulting universal principles, man
- It is not something that happens after a consults his own needs, wants, and
rule or statute is laid down but is a agendas, or the changing norms of the
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necessary part of them society in which he lives.
- “necessary part” - that in a given case
we can judge what the law is as a matter - “The end or purpose of the law is the
of fact only by telling how it operates and deliberate achievement of social
what its effects are in and upon human contentment”
activities that are going on

DEFINITION LAW ETC


LEGAL REALISM - the realism in law is characterized by a - Criticized that natural law must be CONSTRUCTIVE SKEPTICS
healthy scepticism for the traditional accepted by all because it is self-evident; -Skepticism about rules, facts and judicial
perspectives of law; about the role of The concept of situational natural law is opinions
rules, facts, and judicial opinions in the also rejected MATERIAL FACTS
legal ordering of society. - Law has been defined as the a system of - Material facts do not refer to all past acts
- Re-examination of the problem of the reason, deduction from principles of and events; Presented facts may be
nature of the law in terms of the relation ethics, or admitted axioms etc. considered irrelevant
of legal rules and legal facts to the - is not an ideal concept but something ROLE OF EXPERIENCE AND SOCIAL
realities of the judicial process. that actually exists. It is not that which is ADVANTAGE
in accordance with nature, or religion, or - Law is not the exclusive product of logic.
morality, it is not that which ought to be ROLE OF METALEGAL STIMULI
but hat which is - Formalist Concept: decisions are based
on the doctrine of stare decisis
THE LAW AS THE PRODUCT OF - Realist Concept: decisions should be
JUDICIAL PROCESS based on material facts of a case and not
- Realist school of jurisprudence has just on jurisprudence
placed the emphasis on the judicial - Metalegal Factors: set by witness,
process, it has nonetheless considered the lawyers, judges’ legal attitudes and
administration of justice as the end of the prejudices, by judges’ predilections and
law preconceptions, historical events, current
- In the judicial legal realism, the process social values and postulates
that controLs the activities of the
individuals or groups of individuals in a
politically organized society is the law
uttered by the courts

CRITICAL LEGAL REALISM - Seeks to fundamentally alter lawà - The law exists to support the interests of DECONSTRUCTION in Critical Legal
exposing it as not a rational system of the party or class that forms it Realism
accumulated wisdom but an ideology that - It is merely a collection of beliefs and - It is the technique of:
supports and makes possible an unjust prejudices that legitimize the injustices of 1. Tight analysis of the traditions of the
political system society dominant liberal paradigm
- A revolutionary movement that - The wealthy and the powerful use the 2. Reformation of the traditions of the
challenges and seeks to overturn law as a means for oppression in order to dominant liberal paradigm
accepted norms and standards in legal maintain their place in the social hierarchy
theory and practice àexposes what it - A tool used by the establishment to TRANSFORMATION OF THE POST-

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sees as its flaws maintain its power and domination over LIBERAL ORDER
an unequal status quo. 1. Decentralization of government
2. Reorganization of market economy
3. Reconstruction of system of rights
SCANDINAVIAN LEGAL REALISM - It rejects the view that law is a - Thus, for phychological legal realism, the
determinate body of doctrine or that law and its component system of jural
precedents and statutes determine the relations are real because they are social
outcome of legal disputes. facts. The evaluation is no longer left to
- Scandinavian legal realism, like axiological criteria but to the feeling of
American realism, regards law as an what is good for the society. However, the
empirical fact. judgment of value involved is problematic.
- However, American realists treated law - legislation, execution of statutes, and
as a kind of behavior of a certain social adjudication of cases are essential to the
group, consisting of people professionally social order, and to assure the legal
preoccupied with resolving conflicts; ordering of society the law and its
Scandinavian realists, on the other hand, component jural relations must be based
searched for the “essence” of legal on the “felling for justice prevalent and
phenomena in the psychological reactions current within society.” This is different
of individuals. Hence such concepts as from the concept of justice propounded by
“law” or “obligation” are regarded by the natural law philosophers which
Scandinavian realism as psychological indicates or points to “the one and only
facts. solution.”

DEFINITION LAW ETC


POLICY SCIENCE Four salient features: - Law is adequate if it does not take into Basic social values: power, knowledge,
1. Reaction to apathy towards social account the goal values and policy respect, income, safety, liberty, equality
values guidelines to which the society is
2. Movement away from ontological committed.
jurisprudence - Law can truly be an instrument of global,
3. Emphasis on human rights regional and national control when it is
4. Movement for the universal recognition committed to the complete achievement
of social values of the social values that constitute the
professed ends of democratic societies
-Law is an adequate
ECONOMIC ANALYSIS OF LAW - Applies the tools of microeconomic - Presupposes a concept of law in that the
theory to the analysis of legal rules and law is uncontrovertially known to all
institutions actors

Common law legal systems vs. Civil law legal systems

• Common law systems place great weight on court decisions, which are considered "law" with the same force of law as statutes. In civil
law jurisdictions (the legal tradition that prevails in, or is combined with common law in, Europe and most non-Islamic, non-common
law countries), judicial precedent is given less weight (which means that a judge deciding a given case has more freedom to interpret
the text of a statute independently, and less predictably), and scholarly literature is given more. For example, the Napoleonic Code
expressly forbade French judges from pronouncing general principles of law.

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• Common law systems trace their history to England, while civil law systems trace their history to Roman law and the Napoleonic Code.

• The common law is being replaced by statute or codified rule in the United States, in which case, the statute sets the general
principles, but the common law process determines the scope and application of the statute.

• Judicial opinions are usually quite long, and give rationales and policies that can be balanced with judgment in future cases, rather than
the bright-line rules usually embodied in statutes.

• Common law courts tend to use an adversarial system, in which two sides present their cases to a neutral judge. In contrast, in civil law
systems, inquisitorial systems proceedings, where an examining magistrate serves two roles by developing the evidence and
arguments for one and the other side during the investigation phase.

LEGAL POSITIVISM
Law is a complete set of norms and rules of action which excludes from its specific concerns value creation, clarification and realization.

BASIC SOCIAL VALUES: Policy Science

 Social Valu “ Power” - A political mechanism for the good of the society which reflects the will and choice of the people as a whole and not just that of the leader.

• Social Value “KNOWLEDGE” - Means the widespread understanding among peoples of different cultures and backgrounds.

 THE SOCIAL VALUE “RESPECT” - Regard for life and esteem for the dignity and worth of human personality.

• THE SOCIAL VALUE “INCOME” - It means the economic betterment of the people, adequate provision for a high employment level, freedom to unionize and bargain
collectively, efficient method of production and wise consumption of goods and services, and raising of the plane of living

• THE SOCIAL VALUE “SAFETY” - Represents and signifies public protection, pubic health, social security and peace and order.

• THE SOCIAL VALUE “LIBERTY” - In the physical context, liberty means security from restraints or freedom of the body from external physical compulsion
Due process of Law

THE SOCIAL VALUE “EQUALITY”

LEGAL PHILOSOPHY: FINAL EXAMINATIONS


Sections: 1-C, 1-G, 1-I & 1-K
Atty. Rochelle Dakanay-Galano
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LEGAL PHILO | Macky . t(-.-t)
2009

1. Explain what is meant by the universality of human rights as based on Natural Law (5pts.) and on Policy
Science Perspective (5pts.)?

2. A sells his 1997 Nissan Sentra to B, a compadre and leaves it to B to determine the price. If B refuses to fix
a price and simply takes the car, is he obliged to pay the price? Explain. (5pts.)

3. How would you compare the Civil Law system (5pts.) with that of the Common Law system (5pts.)?

4. What is the Policy Science Perspective and how does it define law? (5pts.) Explain its critique of Legal
Positivism. (5pts.) What are the social values espoused under this perspective? (5pts.)

5. Explain how law relates to morality in Legal Positivism (5pts.) and in Natural Law. (5pts.)

6. Define law according to Legal Formalism (5pts.) and Legal Realism. (5pts.)

7. Why should the law be liberalizing according to Critical Legal Realism? (5pts.)

8. Explain the following statements:


a. Functional perspective is known as sociological jurisprudence. (5pts.)
b. The binding force of law is psychological. (5pts.)
c. Law as a means of directing man to the maximum of happiness and minimum of misery. (5pts.)
d. Law as an institution ordained by God. (5pts.)
e. Law is a product of the judicial process. (5pts.)
f. Equity follows law. (5pts.)

9. Demetrio knew that a piece of land bordering the beach belonged to Ernesto. However, since Ernesto was in
Europe, no one was taking care of the land. Demetrio built nipa sheds on Ernesto’s land and rented out
these sheds to people on the beach. When Ernesto returned, he demanded return of the land. Demetrio
agreed but only after he has removed the nipa sheds. Ernesto refused on the ground that the nipa sheds
already belonged to him by right of accession. Who is correct? Decide the case using the functional
perspective. (5pts.)