The Relevance of Philosophy of Law by Emmanuel Q.

Fernando;

INTRODUCTION: THE NEED FOR PHILOSOPHY OF LAW

A student may wonder why someone interested in learning law needs to study the philosophy of
law. He may argue that the law, possessed of a unique perspective, is a self-contained discipline that
is best left on its own, free from the intrusions and encroachments of a discipline with a different
perspective, like philosophy. He may point out that law is a difficult enough discipline as it is, and
that it would be folly to complicate matters by cluttering it up with the alien, abstract, irrelevant and
speculative observations emanating from philosophy. Furthermore, he may cap the argument by
pointing out that philosophers, not being lawyers, are bound to misunderstand the law, and then
cite as evidence how some philosophers in the past have had the audacity to criticize or comment
on the law but have only succeeded in exposing their own ignorance by coming up with absurd or
inane observations. Thus, he may conclude that law should best be left in the hands only of lawyers,
who approach the subject matter from the correct perspective, the legal point of view, and
therefore are the only ones capable of truly understanding the law's nature .

The error in this argument lies in its very root, in the very first assumption made that law is a self-
contained discipline. Indeed it is not, nor can it ever be. There will inevitably arise within the law a
set of problems the answers to which cannot be found internally. Instead a lawyer has to step
outside the law to answer these problems satisfactorily. Hence the resort to philosophy.

In other words, a lawyer or student, intent on studying the subject matter of law fully and well,
eventually will have to seek the aid of philosophy. For example, a lawyer, handling a given case, may
observe that the applicable statute contains a logical inconsistency, or that the reasoning done in a
relevant judicial opinion is logically faulty. In such situations, he, without necessarily forgetting that
he is a lawyer, must also become a philosopher and do logic in order to find the correct legal
interpretation of the materials relevant to the case. Indeed reasoning is essential to the legal
enterprise, which is argumentative in character; the lawyer, if he intends to be a good one, must be
knowledgeable not just in law but also in logic. Or a judge may be worried that he is not rendering
justice to the parties in deciding a given case. Again, justice is a moral concept, and the judge, to be
a great judge, must be well-versed in moral philosophy. Indeed there exist a number of problems in
law which need the help of legal philosophy in order to find a deeper, more insightful understanding
of the legal problem. Examples of such legal problems, apart from the two mentioned above,
concern truth, meaning, validity, right, duty, sanction, coercion, efficacy, responsibility, intent,
motive, crime, punishment, tort, property, ownership, possession and the like.

Hence, when philosophical ideas intrude into the realm of law, it is not for the purpose of
complicating matters, but on the contrary, for the purpose of clarifying them. Certain problems
inevitably crop up in law, and because of the nature of such problems, a satisfactory solution to
them cannot be found within law; resort to philosophy is thus necessitated. And if some
philosophers have embarrassed themselves by misunderstanding the law, the remedy is surely not
the drastic one of refusing to listen to any idea which contains a hint of philosophy, but rather to
make sure that the philosopher knows the law at least as well as philosophy, so as to avoid making
inane or ridiculous observations about the law. The law will always be in need of some
philosophizing, and philosophizing, in order to be good, must at least be accurate concerning the
subject matter it is philosophizing about.
 The perspective of philosophy is not just one external to law, or outside it. The philosophy of law is a
second-order or meta-discipline which looks at law, a discipline of the first-order, from above. From
this' vantage point, it analyzes the discipline and subject matter of law.

This vantage point distinguishes the philosophy of law from the sociology of law. Sociology is a
science which, in general, involves the study of man in society. The sociologist of law is concerned
with law as a social phenomenon, and directs his research towards the discovery of descriptive rules
which characterize the relation of law to society or the effect of law on how human beings behave in
society. Hence its perspective in studying the law is not from above, but merely alongside the law;
although the sociology of law investigates the law, it does so on the same level as the discipline of
law, being just as much a scientific discipline as the law is. Unlike philosophy, it cannot claim some
sort of superior perspective from which it observes the law.

Apart from the distinction as to perspective, the philosophy of law can be distinguished from the
sociology of law in two more ways, that of method and of purpose. The method of the sociologist is
that of a scientist - empirical, inductive, and experimental. His purpose is to explain and to predict.
In investigating law as a social phenomenon, he aims to understand society or the world better so as
to be able to be more in control of it. Needless to say, philosophy employs and includes different
methods and purposes, which has been described as metaphysical, justificatory, conceptual, and
normative. This leads to a discussion of philosophy.

PHILOSOPHY IN GENERAL

One definition which serves as a good starting point for discussion characterizes philosophy as "the
rational investigation of certain fundamental problems about man and the world he lives in. There
are two key words found in this definition: the word "problem," and the word "rational"
Accordingly, there are two approaches to philosophy, one in terms of problem and the other in
terms of method.

1. The problem oriented approach to Philisophy

A problem-oriented approach to philosophy differentiates philosophy from any other discipline in

terms of its subject matter or content, in other words, in terms of the types of problems it deals
with. A philosophical problem is said to be general, highly abstract, fundamental and controversial.

Generality, or wideness of scope, is contrasted with specificity or particularity. Philosophy is not

concerned with particular objects like this pencil, this dog, this chair, etc. On the other hand, the set
of pencils, dogs or chairs is general in character, and one can increase the generality or wideness of
scope accordingly. For example, one can proceed from the set of dogs to the set of mammals,
animals, living things, objects, and so on. It can be said that the more a concept encompasses a
greater number of types of objects, the greater its generality.

Abstractness, on the other hand, is contrasted with concreteness. An object is concrete if it is

capable of being perceived by the senses. Abstract things, on the other hand, are intangible. How
can one perceive philosophical concepts such as truth, meaning, justice, knowledge, virtue and the
like?
 Fundamental means foundational. To explain this more adequately, an analogy with a building is
most instructive. In order for a building to be built solidly, so as to withstand earthquakes or any
other such calamity, it must rest on firm foundations. So too with a discipline, science, or system of
knowledge. For a science or discipline to be reliable, the concepts on which it is built must be strong
and stable, if not infallible. An error in its very foundations is disastrous in that it infects the entire
system of knowledge. The abstract concepts listed in the previous paragraph, being also
foundational in character, would certainly be required to be clearly and correctly interpreted and
understood, lest the system be built on shaky foundations.

Finally, a philosophical problem by its very nature is controversial. This means that there exists no
agreed-upon method for determining the solution to such a problem. If such a method existed, then
a right or wrong answer to that problem could be found. But if so, that problem would no longer be
a philosophical but a scientific one.

Indeed, this is historically how the sciences were born. During the Classical Greek period, there was
no such thing as "science" in the contemporary sense of the term. All knowledge was considered
philosophy. "Philosophy" etymologically means "love of knowledge." Aristotle, for example, the so-
called father of various sciences (like physics, biology, politics and economics), considered himself as
engaged in philosophy. Even much later that belief was still prevalent, although with a slight change
- the two concepts were deemed synonymous or interchangeable. For example, Sir Isaac Newton,
the great physicist, entitled his magnum opus on the science of physics Philosophiae Naturalis
Principia Mathematica or Mathematical Principles 0/ Natural Philosophy. This is from the point of
view of a scientist. The same holds true also for a philosopher. Hobbes, in his monumental
philosophical work Leviathan, referred to knowledge concerning consequences both as philosophy
and science. He then divided philosophy into two, natural philosophy and politics, also referred to as
civil philosophy.

From these observations and the subsequent emergence of science as a discipline separate from
philosophy, it can be concluded that when a system of knowledge is so abstract and speculative that
no accepted method yet exists for determining a right or wrong answer to questions within that
system, then such a system of knowledge is still part of philosophy. However, the moment questions
within that system of knowledge become capable of resolution by some sort of method, perhaps
due to a brilliant insight by some thinker about the nature of the subject matter he is investigating,
then these questions cease to be philosophical and become scientific. This is precisely what
happened to physics, biology, politics and economics. This has been happening too to other, more
recent sciences. The psychology of perception grew out of the studies of Locke, Berkeley and Hume.
Linguistics depended on the insights of the philosophers of language of the twentieth century like
Wittgenstein and Austin. Computer science owes much to the pioneers in mathematical logic and
philosophy of mathematics such as Russell and Frege.

2. The Method oriented approach to Philosophy

A method-oriented approach to philosophy, on the other hand, focuses on the word "rational" in the
definition. The method of philosophy is rational in character. Nowadays the prevalent or accepted
method of doing philosophy is the logical analysis of concepts, and has been described as "analytic,"
"conceptual" or "linguistic." Clearly, the emphasis is on the use of reason.
Chapter 1 Introduction to Legal Philosophy by C. Pascual

CHAPTER I JURISPRUDENCE, JURAL AND NONJURAL LAWS

1. Nature of Jurisprudence
A. Proemium
B. The Problem Stated
C. The Different Schools of Jurisprudence

2. Law in General
A. Rules of Action
B. Orders of Sequence
C. Classification
D. Focal Point of Nondeviation

3. Jural Law
A. Particular Sense
B. Collective Sense
C. Abstract Sense
(1) Precepts
(2) Ideals

4. Nonjural Law
A. Divine Law
(1) General Sense
(2) Strict Sense

B. Natural Law
(1) Historical Background
(2) Concept and Precepts
(3) Place and Function in the Legal Order
(a) Justificatory Use
(b} Oppositive Use
(c) Regulatory Use
(d) Interpretative Use

C. Moral Law
(l} Moral Order
(2) Moral Norms
(3) Moral Law and Other Disciplines
(4) Moral and Social Norms

D. Physical Law
(I) Nature and Attributes
(2) Discovered Norms
(3) Distinguished from Jural Law
(4) Distinguished form Divine Law
1. NATURE OF JURISPRUDENCE

A. PROEMIUM

Jurisprudence (which should not be confused with case law) or legal theory (as the former is
sometimes called) deals with the general philosophy of law, that is to say the nature and elements
of the law. The question of the nature of the law is concerned with its derivation, development and
thrust. The question of the elements of the law deals with legal concepts which are material to the
legal ordering of society, namely, state. sover - eignty, legal relations, legal persons, legal facts, and
legal things. Jurisprudence, then, is concerned with the theoretical and technical aspects of law as a
discipline. 1 These are precisely the areas where scholars have differed, giving rise to various schools
of thought on the matter.

While jurisprudence or legal theory has been rather unpopular with some members of the bench
and bar and sometimes "undervalued by the practical minded, "2 it cannot be overemphasized that
the legal order, that is to say law and government, depends to a great extent on legal philosophy far
its improvement. It cannot be gainsaid either that legal concepts are developed by legal theories.
Jurisprudence also furnishes the deep - ening perspective to the study of law. It is important, then,
that students of law should first have a working background and overview of the thinking of the
different schools of jurisprudence on the nature oflaw. With this advantage one can, with some
amount of self-confidence. begin to express or write in the idiom, diction and thrust of each school
of jurisprudence.

The aversion toward jurisprudence is an indication of a constricted approach to the study of law.
Justice Oliver Wendell Holmes, Jr., of the Supreme Court of the United States. an influential
jurisprudent in his own right. strongly advised the study of the great philosophers and jurisprudents
in order "to see how centuries after their passing their ideas have become a practical force
controlling the conduct of human beings and how much more this world is governed even today by
them. "3 Professor James J. Cavanaugh aptly stated that if the foundations of jurisprudence are not
taught and emphasized "the students of law would be led to the appalling conclusion that these
foundations do not exis t, their enthusiasm wanes, they continue dispiritedly, and graduate
unpleasantly close to cynics."

As an introductory work. this volume will be confined to the study of the nature of law through the
approaches pursued by the main schools of jurisprudence. As such, it will not dwell on the
techniques of the law except when absolutely related to the question of the nature oflaw. Neither
will it e laborate on the study of law as a linguistic problem, e.g .• inquiry into the appropriate
choice of words to prevent ambiguity of expression. meaning of discourse independent of what the
legislators and judges intend to convey. investigation of the meaning carried by legal terms and legal
texts. There is. of course, no question as to the influence oflanguage on law since there is a strong
link between law as a discipline and language as a means of communication. After all. law is a type
of language.4 But the elements of law and language of law will not be considered here so as not to
confuse the primary purpose of this volume.

B. THE PROBLEM STATED

 In jurisprudence, we do not speak of"a law" but of "the law" or simply "law". The question is not
what a law is nor what the term law sigrJfies in the collective sense. The answers to these questions
will not yield the true picture of the legal order.

The problem that has continued to preoccupy philosophers and jurisprudents alike is still the same
question which Socrates asked his students a long. long time ago. namely. "What is the nature of the
law?" Much later. Cicero raised the companion question. namely, "Why is jurisprudence worth
studying?" There is no question that the more fundamental a term is the greaterthe difficulty of
analyzing it. And so it is with the term "l~w". There are various theories about the origin,
development and thrust of the law. It is obvious that it would be misleading to look at the problem
from a single point of view or to consider as a whole the different views expressed on the matter. As
someone has aptly said. "there would be no prudence injuris in picking out just a single view of the
nature of the law without taking into consideration the development introduced by the other juristic
schools." To be in any way adequate. there is need to orchestrate - if it may called that-the sounds
of the different schools of jurisprudence concerning the nature of the law. Only on the basis of a
systematic understanding of the essence of the di!Terent theories. rationalizing di!Terences
whenever possible, emphasizing harmony. making allowances for the areas where they overlap. and
balancing the ideas that have led to undue emphasis in one direction or another. may the nature of
the law be fully appreciated. After all. jurisprudence builds upon the achievements of the past and
careful examination of history is essential to its development. "

The impatient may see nothing but confusion in the views held and expressed by the different
schools of jurisprudence on the question of the nature oft.he law. Others consider these
perspectives as related aspects of just one great concept - Law. And these views should be
considered in this light for the law (to borrow a very pleasing phrase) is indeed a many splendored
thing. Like the facets of a diamond. the different perspectives as to the nature of the law combine
together to give it a fascinating brilliance.

C. THE DIFFERENT SCHOOLS OF JURISPRUDENCE

The various schools of jurisprudence see law in different lights. They have their own points of
observation. Thus, based on differences in imagery and perspective, the philosophers and
jurisprudents who have inquired into the problem of the origin, development and thrust of the law
may be separated into various schools, as follows:

(a) The historical school of jurisprudence which appraises the law in the context of the common
consciousness of a group of people. The question this juristic school seeks to answer is: Where did
the law come from and how did it evolve?
(b) The teleological school of jurisprudence which thinks of the nature of the law in terms of the moral
and rational nature of humankind. This juristic school understands the law as strictly connected with
morality and naturality. The question emphasized by this juristic school is: What is the telos of the
law?
(c) The positivist school of jurisprudence which considers the law as a conscious norm of the state
backed by its authority and force. For this juristic school the law is not inherently moral or natural.
For this school of jurisprudence the problem is: What is the distinctive structure and content of the
law.
(d) The functional school of jurisprudence which views the nature of the law in terms of the jural
postulates, social interests and national policies of the people. The question which this juristic
 school raises is: How does the law work in weighing or adjusting the competing individual and public
interests?
(e) The realist school of jurisprudence which takes the nature of the law on the basis of the on-going
experiences and inter-experiences of the people. This juristic school asks the question: Is the law
verifiable in the practical life of the people?
(f) The policy science school of jurisprudence which looks at the nature of the law in relation to the
degree of success of society in the creation, clarification and realization of social values. The
question this juristic school raises is: What is the basis and the limits of global, regional, and national
legal orders in relation to social values?

2. LAW IN GENERAL

Generally speaking, the term "law" means any rule of action or order of sequence from which "any
beings whatsoever either will not. or cannot. or ought not to deviate.

A. RULES OF ACTION

A rule of action is any warrant. instruction. measure, regulation, or decision governing any act,
conduct, transaction, or proceeding, including its consequences. A conspicuous ·example is a traffic
regulation promulgated in accordance with a city or municipal ordinance. Another obvious
illustration is a statute enacted by the legislature pursuant to its legislative powers in the
constitution.
There are two important points that should be noled insofar as rules of action are concerned. First,
conduct is included in the definition. This is necessary for in the legal order there are certain
conduct, e.g. forbearance. which means intentional refraining from action, that are productive of
distinct legal effects and consequences. In other words. forbearance is fully significant as a positive
act. The other point is that even though rules of action have been and are being violated they
cannot be broken. in the sense that the word is used in the vernacular. Even though rules of action
are repeatedly violated or remain unobserved they. nevertheless. continue to apply with their
sanctions in full force and effect. Legally speaking. though. rules of action may be broken for they
are always subject to repeal or amendment by the body constitutionally authorized to do so. or they
may be declared null and void when they are contrary to the constitution.

B. ORDERS OF SEQUENCE

On the other hand. an order of sequence is any system of arrangement or consecutiveness. or any
uniformity of a given group of phenomena. While this category is mainly concerned with physical
nature. it cannot be gainsaid that an order of sequence is also law, such that any deviation
therefrom results in inconvenience. damage, or injury. The numerals or integers "one" (1) to "zero"
(0) constitute a good example of an order of sequence. This system of numerical arrangement or
consecutivess of the positional value of numbers cannot be unilaterally varied without harmful
consequences. An example of a uniformity of physical nature is the pull or drag of gravity.
Uniformities of nature can be harnessed to good use but no human being can violate or change any
order or norm of physical nature without harmful results. For one thing. they are immutable for they
do not alter with time and place. And, for another thing, they are absolute for they do not depend
on the human will but operate inexorably admitting of no exceptions. Thus, a rule of action differs
from an order of sequence in that the former is relative while the latter is absolute.
C. CLASSIFICATION

From what has been stated. it follows that there are four distinct classes of rules of action and
orders of sequ ence. The first includes rules of action and orders of sequence which necessarily
determine the activities of human beings. Under the second group are comprised rules of action and
orders of sequence which necessarily determine the motions and even the instincts of dumb
creatures. The third class embraces rules of action and orders of sequence which necessarily
determine the origin and growth of living organisms. The remarkable thing about this particular class
of rules and orders is lhat it governs the development of all forms of life, from the simplest to the
most complex. And fourth is the class where rules of action and orders of sequence which
necessarily determine the movements and courses of inanimate bodies or masses are included.

D. FOCAL POINT OF NONDEVIATION

On the basis of the general conception of the term ''law" it is noticeable that a ll rules of action and
orders of sequence are jussive in character. This means that all concerned must cease and desist
from certain activities or conduct which otherwise would result in some loss. damage. or injury,
whether directly or indirectly.

There are three types. namely, the "will-not" category of nondeviation the "cannot" category of
nondeviation and the, "ought-not" category of nondeviation .

These types of nondeviation are similar in one obvious respect. But they are different from one
another.

The "will-not" category of nondeviation means that there is a determination to abide with. or avoid
violation of, the rules of action and orders of sequence. Therefore. this force carries a connotation of
future conformity. prospective agreement. or eventual compliance.

The "cannot" category ofnondeviation means that there is no other way but to obey or comply with
the rules of action and orders of sequence. no matter how much the desire to act otherwise may be.
This is indicative of a present or actual condition of conformity. A problem arises in connection with
this category of nondeviation. As stated before. there are rules of action and orders of sequence
that have been continuously violated. Thus. it would appear inconsistent to say that such rules and
orders "cannot" be violated. To analyze the question further in relation to the problem of the legal
ordering of society. how can the institution of penitentiaries be explained if persons "cannot"
deviate from rules of action and orders of sequence. Perhaps. then. the "cannot" category of non-
deviation should be dropped. But it is obvious that this would be foolhardy. The "cannot" category
of nondeviation is precisely the force which gives the legal order the authority to try and punish
lawbreakers. Its significance lies in the fact that no matter how often or how long rules of action and
orders of sequence are violated their efficacy are not diminished. let alone changed. Such rules and
orders continue to exist with all their sanctions in force. It is, therefore. not a question of whether
rules of action and orders of sequence "cannot" be violated or ignored but that no such violation or
disregard is possible without the application of their sanctions.

In the "ought-not" category ofnondeviation. there seems to be an alternative to action. However,

the apparent alternative is abandoned because it is the better part of prudence to follow or comply
 with the rules of action and orders of sequence rather than refrain from following or complying with
them.

3. JURAL LAW

The term "law" in its jural sense has three distinct senses. namely. the particular. the collective, and
the abstract.

The first and second uses of the term "law" comprise what has been called "lawyer's law". although
this is not a happy description. But in jurisprudence. they are better referred to as enacted law.

A. PARTICULAR SENSE

The jural term "law" is used in the particular sense when it is preceded by the indefinite article. viz .•
a law. In this sense, the term "law" is used to refer to batas, ley, legge, lex, nomoi, loi, and gezetz.

It will be noted that in the particular sense of the term "law" the reference is to a statute. which is
the written enactment of the legislative branch of the government composed of definite provisions
for definite situations or states of facts to which certain incentives and/or sanctions have been
attached as means of enforcement. Incentives or sanctions may assume different forms. A legal
incentive is a stimulus or motive developed through some extraneous influence operating on the
individual members of society. Some examples of legal incentives are tax exemptions. tax
deductions. government loans. condonation of accrued taxes, government subsidies. benefits and
rewards. A legal sanction, on the other hand, is a coercive intervention or an eventual punishment
annexed to a violation of a rule or regulation. Some examples of legal sanctions are fine,
imprisonment, destierro. loss or suspension of certain legal privileges, assessment of damages, cost
and interest.

In the particular sense, the term "law" is also used to refer to any rule or opinion given by an agency
of the state or by a jurist. or by an authorized official of the government. In this sense, the term
"law" refers also to any contract or agreement. These covenants are binding in character and so the
contracting parties are said to be solemnly making "law" for themselves, provided that such
agreements are not contrary to law, social interest or national policy.

An example of a rule or regulation formulated by an agency of the state is a rule of civil or criminal
procedure promulgated by the Supreme Court pursuant to its rule-making power. There is no doubt
that it is a law. Another example is a regulation issued by the Central Bank in accordance with its
charter and duly published in the Official Gazette. a government publication. While they are not
enactments of the legislature. and so not statutes properly so-called, they are nevertheless laws.

An example of an opinion given by a jurist is the "dangerous tendency" rule posited by Justice
George Malcolm of the Supreme Court of the Philippines. It was enunciated in the case of People v.
Perez, 9where the Court explained that "there is a seditious tendency in the words used which could
easily produce disaffection among the people with a disposition to remain loyal to the government
and obedient to the laws and tending to disturb the peace of the community and the safety of the
government." For another example of an opinion given by a jurist is the "clear and present danger"
rule posited by Justice Holmes of the Supreme Court of the United States in Schenck v. United
States, 10 and amplified in a series of brilliant opinions in Gitlow v. New York, 11 Pierce v. United
States. 12 and Abrams v. United States.13 In the case of Schenck v. United States. the defendants
mailed circulars charging in very impassioned language that conscription into the U.S. Army was
both despotic. and constitutionally suspect and urged the people to violate the statute. Justice
Holmes. in his dissent. stated that "the character of every act depends upon the circumstances in
which it is done ... , The question in every case is whether the words are used in such circumstances
and are of such a nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent," 14 Under this test, words or acts are not
punished because they are cntical of the government since there are no ideas, whether religious.
political. economic, or scientific. that are immune from dispute and reassessment. They are
punished because they have passed the farthest limits offree expression for the words used or acts
done incite people to act unlawfully, which is the very thing that Congress is justified in preventing.
is Thus. if the words used or the acts done are in such circumstances and are of such a nature as to
create a clear (not doubtful) and present (not remote) danger to society. then. such utterances or
acts are punishable.

But although the Holmesian clear-and-presentdanger test has survived two world wars already, it
has been the subject of diverse discussions and comments. One view extends the test to the entire
range of civil liberties. The other view believes that the application of this "felicitous phrase" (as this
view characterizes it) is not applicable as a formal constitutional test. In any case. it has undergone
further refinement notably in cases involving conspiratorial. clandestine and underground activities
to overthrow the government by force and violence. Learned Hand, writing the decision of the Court
of Appeals of the United States in the subsequent case of United States v. Dennts16 took into
consideration the authority and reach of the Holmesian clear-andpresent-danger rule, especially on
the question of when the danger is to be deemed .. present". Hand stated that "in each case [courts]
must ask whether the gravity of the evil. discounted by its improbability. justify such invasion of free
speech as is necessary to avoid the danger."18 The United States Supreme Covrt. where the Dennis
case was later brought on appeal, 1 9 speaking thru Chief Justice Fred Vinson, held that the situation
with which ... Holmes [was] concerned [bore] little relation to any substantial threat to the safety of
the community. [Holmes] was not confronted with any situation comparable to the instant one-the
development of an apparatus designed and dedicated to the overthrow of the government in the
context of crisis after crisis." The Supreme Court then adapted the Handian statement verbatim
saying, "more we cannot expect from words.

Since the Dennis case, many so-called second string Communists have been prosecuted for
advocating revolution while the Korean War was going on, constraining the courts to the conclusion
that the danger of utmost gravity and likelihood of the danger or evil justified the invasion of the
freedom of expression for the purpose of avoiding the danger or evil.

For still another example of an opinion of a jurist is the .. no immediate decision" rule in
administrative law posited by Justice Antonio Villareal of the Supreme Court of the Philippines in the
case of Javellana v. La Paz Ice & Cold Storage Co .• Inc. There it was held that the various motions for
postponement amounting to a systematic method of blocking or delaying the ordinary course of the
hearing of an application for a certificate of public convenience will justify the grant of a provisional
permit to operate the public service applied for. The "no immediate decision" rule has been applied
in subsequent cases.

An example of an opinion of a jurisprudent is a commentary on a particular branch of law. The

authority of an opinion or commentary is based on the scholar - ship of the commentator. It is. of
 course. presumed that courts take into consideration only the opinions and commentaries of highly
qualified persons.

An example of an opinion of an authorized official of the government is a ruling or opinion of the

Secretary of Justice. As the chief legal officer and legal adviser of the government his opinions are
generally followed, especially in the executive and administrative branches of the government.

B. COLLECTIVE SENSE

The word "law" is employed as a collective or aggregate term when it refers to the gross or bulk of
specific or particular laws relating to one subjectmatter. or when it refers to the laws obtaining in a given
society. As an example of the use of the word "law" referring to the totality of specific laws relating to
one subject -matter is Civil Law, or Commercial Law, or Remedial Law. or Criminal Law. As an example of
the use of the term "law" with reference to particular laws from a determina te source or origin is Law of
the Philippines.

The classification of enacted law in a specific and logical manner is based on its nature and purpose.
taking into consideration the character of the jural or legal relations affected. that is to say whether such
relations are public or private in nature. Therefore. there are three divisions: 1) laws defining rights and
obligations. 2) laws defining remedies and procedure. and 3) laws defining rights and obligations in
extraordinary times. Each of these divisions may affect either public or private relations. that is to say
public when the legal rules regulate the relations of the s tate with the individual members of society
and vice-versa, and private when the legal rules affect the re lations of individuals with one another. This
means that rights and obligations are worthless without the concommi tant rules and regulations to pro
tect or enforce them. And. of course. there would be no reason for the existence of the latter without
the former.

The first division is rightly called substantive law. Here there are two kinds. the substantive private law
and the substantive public law. Under the former are four types: 1) the law of persons and family
relations, which defines the righ ts and obligations of persons living in a politically organized society
regarding their personal and family relationships, 2) the law of property, defining the rights and
obligations of persons living in a politically organized society in relation to property and property rights.
including classes of legal things and proprietary concessions. 3) the law of obligations and contracts.
which defines the nature and source of claim -ct u ty. privilege -inability. power-liability and immunity-
disability relationships as well as rights and obligations arising ex ques deleto. that is neither from delicts
nor from contracts but from the analogy of a delict, and 4) the law of trade and commerce, defining
rights and obligations concerning land, sea and air traffic, shipment and business transactions as well as
ships and vessels. their crew and navigation. Under the substantive public law are three types: 1)
constitutional law, which deals with rights and obligations concerning the fundamental or supreme law
of the land, more particularly the organization, powers and functions arising from the relationship of the
state to the people of the state. 2) public administrative law, which is the body of legal rules defining
rights and obligations concerning the operation of the government both in its departmental or
administrative functions and the functions of public officers in relation to private persons as well as the
law on elections, and 3) criminal law, which deals with the rights and obligations in connection with
crimes. criminals and punishments.

The second division is rightly called adjective law or remedial law. Here there are two kinds, the
adjective private law and the adjective public law. Under the former. there are two types: 1) the law on
civil actions, which deals with the rules by which a party prosecutes another for the enforcement or
protection of a right or the prevention or redress of a wrong, and 2) the law on special proceedings
which deals with the processes which are not pursued in the ordinary manner or procedure. Under the
adjective public law is the law of criminal procedure which deals with the rules defining legal remedies
and procedures in crtminal actions whether they take on the nature of prosecutions of public crimes or
prosecutions of prtvate crimes.

The third division is rightly called special law. The laws classified under this group ref er to the armed
forces of the government and to the relations among sovereign states. Under this division are three
types: 1) military law which deals with the system of rules and regulations for the creation, government.
and discipline of the armed forces, its speciality being found in the fact that it applies only to those in
actual service in the armed forces in addition to the ordinary laws to regulate their conduct at all times
and in all places where they may be stationed in the performance of their duties. 2) martial law. which
deals with the system of rules and regulations applied by military power in times of war (and is called
martial law properly so called) or in times of grave public danger (and is properly called qualified martial
law), its speciality being found in the fact that it applies to all persons regardless of whether they are
private citizens or in the service of the armed forces add ceasing as soon as the need for it can be
dispensed with, that is to say when the situation has already turned to normal. and 3) public
international law, which deals with the system of rules. regulations and principles which govern the
relations between sovereign states as well as those among their citizens or subjects growing out of such
relationship and such other entities, not states. which are endowed with international personality, its
speciality being found in the fact that it pertains to relationships connected with states and international
entitles.