PHILOSOPHY OF LAW

Professor: Dean Juvy S. Reyes Ph.D

Student: Bai Amira L. Hadjiesmael JD1-Manresa
Basic Concepts of Law
1. What are the four elements of law?
In his Summa Theologica (“S.T.”) I-II, Q.90, A.4, Aquinas mentioned the
FOUR ELEMENTS of Law:
1. Reasonable Ordinance (Rationis Ordinatio)
2. For the common good (bonus communis)
3. Promulgated
4. By Legitimate Authority.
Law was also classified primarily into jural and non-jural.
Jural or Human Law- refers to sanctioned or enacted law such as ststutes, case
laws, normatice rules, and precepts.
Non-jural or Meta-legal Law- are rules not anchored or premised on human
promulgation, such as divine law, natural law, and physical law.
2. What are the branches of law?
1. Substantive Law- establishes rights, duties, and corollary prohibitions.
2. Remedial Law- may also be called as procedural and adjective law
- it prescribes the manner of administering, enforcing,
appealing, amending, and using legal rights and claims.
For the to scope, law can also be categorized into:
1. Public or Political Law- is concerned with the structures of government,
the relationship between the individual and the State.
2. Criminal Law- deals with violation of public order through punishable acts
or omissions.
3. Private Law- concerns with the rules governing the relationship of
individuals.
4. Civil Law- for private ends, it is governed by rules of civil law, or the rules
of civility in terms of property, marriage, succession, contracts, and torts or
private wrongs.
5. Mercantile or Commercial Law- it deals with the artificial personalities
such as corporations and the management of business. Also, it regulates
commercial transactions.
Civil Code System- refers to legal system based on coded laws. Laws are codified
through parliamentary statutes, following the tradition of compiling rules such as
Code of Hammurabi or the Babylonian Law Code ( c. 1772 B.C )
Common Law System- it is based on case lawor judge-made law that relies on
precedents set by judges in a court case. It’s characteristics of English-speaking
countries such as Britain, United States, Canada, Ireland, Australia, and India.
Mixed System- The Philippines, which experienced both Hispanic and American
occupations falls under here. Laws are enacted by legislations, which are
interpreted, developed, and applied by the courts, whose decisions are considered
part of the law of the land.
Islamic Law or Sharia Law- is based on the moral precepts of Islam. Muslim
countries such as Saudi Arabia, Iran, and Pakistan are considered Islamic States as
they base their law purely on mostly on Sharia; while moderate Muslim countries,
such as in the South East and Turkey, follow a more liberal mixed system of Western
and Islamic Laws.
3. What are the main issues of law?
Law and Truths:
a. When witnesses stand before the court, they are asked to take an oath “to tell
the truth and nothing but the truth.” If they deliberately state falsehood, they
will be liable for perjury. In requiring witnesses to subscribe and swear on the
truthfulness or veracity of their statements, the law is presuming that (1) there
is truth or actual state of things (2) witness are obliged to tell or abide by it.
The law recognizes the value of truth-telling, or at least, truth seeking to
implement what is proper, just, and right.
b. Relativists would often caution that “truth is relative,” subjective, perspectival,
ad limited by what the person personally experienced and gained knowledge
of. Truth is limited to one’s awareness. This is the reason why two opposing
witnesses may, in earnest honesty, disclose what they thought to be the true
version of facts. Faulty memory, the limits of our senses (hallucination,
nightime), lack of sanity or objectivity and framing of questions and answers
may affect a person’s testimony.
c. Legal Truth- Rule 128 of the Revised Rules of Evidence defines “evidence”
as the “means, sanctioned by these rules, of ascertaining in a judicial
proceeding the truth respecting a matter of fact. For evidence to be
admissible, it must be:
1. Relevant to the issue, such elements to be proven.
2. Not excluded by law.
Law, Authority, and Force
a. Should law be conceived too be enforceable? Should tough laws spare the
rod?
The force of law is said to be characteristics of a true law. Both naturalists and
positivists agree that it must be some form of a rule or command on human
conduct is enforceable. It is a merely prescriptive, recommendatory
instruction.
 Anarchists think that any form of violence or coercion is wrong and offends
morality; that the only real law must be consensual, which appeals to the
conscience and free-will of constituents, without the use of threats of fear and
of punishments.
The psychologists Sigmund Freud observed that reward and punishment are
needed for discipline; the way a child needs to be trained, so does society,
especially under-developed emerging society.
The machinery of regular enforcement, police presence, and organised
coercion are there to ensure that society can be effectively pursue its policy
and in the process, directs itself from irrational, unproductive, and anti-social
impulses.
For followers of Confucius, the ingredients to prevent and arrest crimes are
not stern punishments but a sense of shame for misbehaviour, cultivation of
virtue, education on right and wrong, respect for authority, and the elderly
showing good examples.

Law and Mores

a. What is legal is not necessarily moral and what is moral is necessarily
legal. Indeed, a moral obligation does not establish a juridical or legally
enforceable tie. Still, even when there is no absolute correspondence
between law and morality, there is still a relation recognised by law itself
between law and morals. In fact, moral customs are among the sources of
law.
b. Harvard Law Professor Lon fuller , author of “The Morality of Law,”
argued that the law has an “internal and external morality.” It cannot be a
one-way imposition since the cooperation of the citizen is needed. The law
has been citizen’s refuge because it is supposed to protect them from the
most perverted regimes, cruelties, and inhumanities. The people produce
law because they have moral aspirations and duties they want to achieve.
Religious/Sectarian vis-à-vis Secular/ Public Morality
- By “morality,” distinction should be made between secular
and religious morality. In states where there is no separation
between Church and State, such as Islamic states and the
Vatican, the must reflect what is considered moral by the
established religion. For instance, as a concession to the
Autonomous Region of Muslim Mindanao, the Code of
Muslim Personal Laws is a form of Legislation based on the
religious morality of Islam.
- The term “ethics” is used to refer to secular standards of
responsibility and accountability specific to professional
areas of practice, such as “the ethics of doing business,” and
for Law practitioners, “Legal Ethics."
 - Secular Morality is associated with “Natural law morality”
according to common held principles of reason, justice, and
equity, deemed as “natural” aspirations of men. The ancient
Greek philosophers put their faith in a rational order of the
universe knowable by any rational man, without need of
mysticism of divine revelation
Law, Justice, and Equality
The legal system has been symbolised by Lady Justice, the blindfolded lady
bearing the scales in all majesty. The embodiment of law has been Justice itself.
Egalitarianism:
- The statement “All men are created equal” refers to one’s
humanity, meaning, we are all equal in terms of being
human, and the rights and duties arising from the fact of
being human, regardless of status. We belong to the same
human species and the way we treat another human being
reflects the value we give to ourselves if we would step into
similar circumstances. The way we want to treat ourselves
should be the way we should treat others. This is what is
meant by “equality” based on the principle of the Golden
Rule. If you trample another’s humanity, you step into yours.
If you uplift others, you raise your dignity.
The Blindfold of Justice:
- In A Theory of Justice, John Rawls proposed that we
should do a “reflective equilibrium” whenever we make laws
or decisions. We must imagine ourselves, he said, under a
“veil of ignorance” unaware of our place in society. It is
Rawl’s version the blindfold justice.
- For Robert Nozick, who developed the “entitlement theory,”
people are entitled to the things they earned, worked for, or
produced. They are also to bequeath the same to others,
such as to their families.
Law on Property and Economics
The law can make you a millionaire tomorrow. It can also make you a
street rat overnight.
Economic policies, based on laws on property, can drive markets and
trade as much as these can kill industries. Whether or not you are employed
right now, or running a successful business, or making much money, or living
the full life, can be the consequence of commercial laws.
Max Weber’s The Protestant Ethic and the Spirit of Capitalism,
argues that the Protestant’s value for hard work, individual justification,
personal enrichment, multiplication of resources, and prosperity as sign of
divine favour made Protestant States economically richer; even as religious
Catholics made poverty a vow, with mendicancy, asceticism, and acts of piety
as the highest expressions of holiness.
According to Weber, Catholicism tends to prayerful indolence, self-
abnegation, and feudal habits. Individual and communal enfranchisement had
to defer to frailcratic interests and expenditures to fund pompous rituals and
grandiose churches.
Private Property:
- Property can be private, communal or public, and corporate.
Private property is considered a natural right by libertarians
and classical philosophers, arguing that humans need to
keep goods for personal consumption and improvement. The
drive for profits can lead to new pursuits and innovation.
Without private ownership, there is no market and incentive
to be productive as there is nothing to gain.
- Joan Robinson, on one hand, espoused not a fixed price
but “price discrimination”- selling the same product at a
different price to different class of people, according to their
purchasing power.

Public Property:
- Meanwhile, communal property refers to things that we use
and own in common, such as natural resources, streets,
bridges, parks, river banks, etc. as provided under Article
420 of the Civil Code. Even in a free-market economy, there
are things that are not marketable and cannot be sold, such
as public goods and services that will be difficult to be
reserved for exclusive use.
Corporate Property:
- Corporate ownership, on the other hand, reserves the
property to an entity, but unlike Communism or Public
Ownership, the owners are free to expand and use their
properties and receive dividends; and unlike private
properties, no private individual owns the corporate property.
It is the artificial person, the corporation, which owns the
property.
- The “Tragedy of the Commons” provides that common
properties collapse due to overuse as individual users
inevitably use public properties according to their self-
interest. When land or property is held in common for
general use, a person does not feel personally accountable
or motivated to devote himself and invest his time and effort
into it.
 - Friedrich Hayek said that economic control is State control of
the means to all our ends. A government big enough to
provide everything would be strong enough to take
everything away. Big Brother makes belittled housemates.
The Morality of the Free Market:
- Critics of the capitalist free market, or an economy free from
government intervention, say that it is selfish and anti-poor.
But for economist Walter Williams in Is Capitalism Moral?
Having free market is morally and economically superior to
any other way of organizing economic behaviour. It calls for
voluntary transactions between individuals choosing to pay
value for value.
Fair Market Economy:
- A supposed concession for private, public, and corporate
ownership is the “fair market economy.” Unlike in
unregulated capitalism, it is not a lassez-faire free market;
but unlike in Communism, neither does it forbid a private
market. The principle is to “make markets free and fair.”
Industries will remain in private or corporate ownership but
the government will provide public works and ensure basic
services such as social security, health care, pension, basic
education, and measures to prohibit monopolies and cartel
that prevent free playing field in services.
- The “Nordic model” of Scandinavian countries follows the
social market economy, with welfare systems that ensure a
quality of life for all.
- For Locke, one is entitled to property not to the extent of
what his money can buy, but as much “as man tills, plants,
improves, cultivates, and can use the product of, so much is
his property.” This is called as the “homestead principle” or
“labor theory of property,” where it is by exertion of labour
upon natural resources that things become one’s property.
- Locke’s principle gives premium to hard-earned wealth.
Both the rich and the poor should not be entitled to property
they did not work for. Giving free subsidies or estates would
only reward the indolent at the expense of the worker who
deserves the property more.

Law, Freedom, and Duty

Many heroes died in the name of freedom. For them, it is more
valuable than mere existence. For to be human is to be free.
Isaiah Berlin said that freedom has two kinds: Negative
Freedom, which is the absence of external constraints; and positive
 freedom, which is self-control or rational mastery over one’s appetites.
Negative liberty is the freedom for coercive and preventive threats,
while positive liberty is the ability of an individual to control his
circumstances.
Freedom and Duty:
- According to Kant, a philosophy of freedom will be deficient
without a duty theory, or deontology. How do we know what
is our duty? Kant answered that first, we must find the maxim
or principle of action in what we want to do. Next, we must
ask ourselves whether we want our choice of action to be
universal rule of law which will be fine for everyone to do
under the same circumstances.
- Authentic freedom is the capacity to enjoy the good life and
fulfil one’s potential and not the opportunity to do harm,
whether to others or oneself.
- Man is capable of so much good but also of so much evil,
and the latter must be checked by law. Disciplinary Law
must restrain unnatural, self-destructive, and unproductive
desires and impulses though penology. Social Cooperation is
needed in a healthy society, and this includes fulfilling social
duties for the good of all, including the personal good of
oneself.
- The Principle of Solidarity, highlights the social nature of a
person, the interdependence of each member of society, and
the commitment to a common good.
Law, Guilt, and Personal Liability:
- Freedom and responsibility are issues in criminal liability. An
element of ethical liability is voluntariness, also called as
“free action.” Since a person will commit or omit as he thinks
right, the presence of malice or good-will does not matter
much so long as an act is deliberate.
- Although bad faith is a factor in aggravating penalties, the
road to hell can be paved with good intentions. Whatever
one’s motivation, one must be responsible for what one
made or made not happen willingly.
- “Determinism” is the theory that all events are caused by
antecedent conditions and people do not have much free
will, but is like a complex machine, subject to various
external and internal stimuli.
- Mental deficiencies, heredity, hormonal imbalances,
psychological lapses, biological instincts, physical needs,
traumas and syndromes, social conditioning, customs and
traditions, parental training, peer influence, environmental
conditions, pass-on political and religious beliefs can all
“conspire” to make a person commit the perfect crime.
 - Quantum Consciousness, says that things are not
mechanistic as they are supposed to be, but there is
microcosmic human influence in the turn of events.
- A version of “Soft determination” or “compatibilism”
insists that freedom is compatible with internal and
determinants. The antecedent factors give us alternatives of
action and tendencies but our character elects what we will
decide to do.
- Meanwhile, criminal punishment, in recent trends, has been
reformed to be more rehabilitative instead of punitive.
- It recognizes sociological findings that people can be driven
to commit criminal acts given their environment and
circumstances. People are responsible but not solely
responsible, and mitigating, aggravating, and special
circumstances must always be appreciated.

Reference: Bernardo & Bernardo, 2018