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Philawsophia - Lecture notes 1

Law Juris Doctor (University of San Agustin)

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Philosophy and Theory of Law

From the book of Bernardo

CHAPTER I – THE CASE FOR LAW CHAPTER II – LEGAL ISSUES AND THEORIES

Lawyers and philosophers can be counted among the most Law – Connotes binding communal rules – the do’s and the
misunderstood species. Many lawyers are miscreants who don’ts.
– A rule of conduct, just, obligatory, formulated by
supposedly murder the truth, who twit the law, who defend the
legitimate power for common observance and benefit.
sum of society, and who are good in torturing the English
language. See how society judges lawyers as morally
compromised, tempted, or hunted beings: from the classic To Classification of Law:
Kill a Mokingbird, to John Grisham flicks, to the series The 1. Jural or human law – refers to sanctioned or enacted
Practice and Suits, to The Exorcism of Emily Rose. law such as statutes, case laws, normative rules, and
percepts.
2. Non-jural or meta-lega law – is not anchored on
Postmodernists say that law is just a self-aggrandized
human promulgation, such as divine law, natural, and
construct that perpetuates itself by citation after citation of physical law.
maxims. If it lives by citation, it would die by non-citation. Even
if we need Classical Elements of Law:
1. Reasonable ordinance (rationis ordination) – Law is
As society advances, must law also advance to become more a reule of human acs, commanding man to act or
complex and intrusive? refrain from acting. The Measure of human acts is
human reason, for it is by reason that we perceive and
The answer will depend on the political tendencies o the law.
put order into things. A reasonable law is necessary,
The SWocialist party-line is “statism”: more State intervention useful, clear in expression, and adapted to place and
and welfare systems to have an equal and stable society and time. The people are moved to follow the law when it
economy. The state, in order to carefully plan society, must is reasonable. If the law is unreasonable, it would only
through law spread its hold from womb to tomb. invite define and dissent.

2. The Common Good (bonus communis)- Principles of
Should lawyers at the philosopher’s stone?
basic humanity transformed once purely ethical
The practice of law an itself be a practice of philosophy. norms into legal claims. This does not mean that all
“Jurisprudence,” often associated with “case law,” in fact means ethical norms should be law, but only those rules
the theory and study of law. From the Latin juris and prudentia concerning man with his fellow man. The common
or the “prudence of law” or “practical knowledge of the law,” good need not be the utilitarian ethic of the “greatest
jurisprudence is supposed to explain the nature, theory and happiness for the greatest number.” Rather, it is the
development, and objective of a law. It is to know the wisdom good of everyone. It bears the common aspirations of
all, not just the majority. As Aquinas suggested, the
behind the law. Through jurisprudence, a law earns more
lawmaker should frame the law according to how the
credulity and force, as one understand not only the what of the subject matter commonly occurs in the majority of
law, but the how and why of it. instances. It is not expected that the legislator should
assume every single case possible, but should leave
What distinguishes an explanation or ratio of a case and an room for exceptions when the law need not be strictly
exposition of legal philosophy in a case is that the latter applied.
explain the underlying concepts, theory, and evolution of a legal
3. Promulgation – The final step in the law-making
dispute.
process is its notice to the public. The public should be
able to take notice of the law, whether by publication
or by hear yeas as a matter of due process.

4. Legitimate Authority – Due promulgation must come
from a competent authority, not from some private
individual or public official unauthorized to enact a
law. Law must be issued by one who takes charge of
the community, who wiled the power to promote the

common interest.


Modern Standards for the Rule of Law

The “Eight Routes of Failure” for any legal system by Lon Fuller:
1. The lack of definite rules or law, so that disputes have
to be decide ad hoc.
2. Failure to publicize or make known to the affected
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party the rules.

3. Unclear or obscure legislation.
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4. Retroactive legislation.
5. Contradictions in the law.

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Philosophy and Theory of Law

From the book of Bernardo

6. Demands that are beyond the power of affected influence in a society, is passed on his successors
parties to observe. of heirs. Society has made the leader its center
7. Unstable legislation or frequent changes in the law. and identity, and will want to keep him alive
8. Discrepancies between adjudication/administration through his descendants who suppose to bear his
and legislation. qualities.
c. LAW – though legal dominion is impersonal. The
What constitutes “rule of law” in the modern international officers operate through institutions, under given
arena, according to United Nations: terms, periods, and conditions. Laws are
The rule of law refer to a principle of governance in legitimate if they are enacted according to rules
which all persons, institutions and entities, public and private, or procedure and individual merit.
including the State itself, are accountable to laws that are
publicly promulgated, equally enforced and independently Enforcing Law
adjudicated, and which are consistent with international human Should Law be coercive to be enforceable? Can rough laws
right norms and standards. spare the rod?
Anarchists think that any form of violence or coercion
is wrong and offends morality; that the only real law must be
Species of Human Law consensual, which appeals to the conscience and free will of
1. As to whether a right or a procedure is given: constituents, not to threaten of punishment.
2. Substantive Law – establishes rights, duties, and For followers of Confucius, the ingredients to
corollary prohibitions. prevent and arrest crimes are not stern punishments but a sense
3. Remedial or Procedural or Adjective Law – of shame for misbehaviour, cultivation of virtue, education on
prescribes the manner of administering, enforcing, right and wrong, respect for authority, and the elderly showing of
and appealing, amending, and using legal rights and good examples.
claims. Social contact theorists think that constraint is
necessary and moral, since society is presumed to have given
2. As to scope: consent to follow the law in establishing a Constitution and a Big
1. Public or Political Law – concerned with the struts of Brother – State. Through election and suffrage, citizens are
government, the relationship between the individual able to renew their consent and to amend the terms through the
and the State. representatives they vote for. Anyone who does not wish to
2. Private – concerned with the rules governing the follow the law can opt to leave the State, be a fugitive, and live in
relationship of individuals. a lawless society, if there is any. Shape up or ship out.
3. Criminal – violation of public order through The psychologist, Sigmund Freud observed that
punishable acts or omissions reward and punishment are needed for discipline; the way a child
4. Civil – the rules of civility such as on the property, needs to be trained, so does society. The machinery of regular
marriage, succession, contracts and torts or private enforcement, police presence, etc.
wrongs that result in damages. Under international law, states are tempered from
5. Mercantile – deals with artificial personalities such as using force against each other since every member of the
corporations and the management of business; that international community is by principle given equal status and
which regulates commercial transactions. consideration in domestic policies. States are presumed to be
civilized, matures, self-determining, and independent.
Civil Code System – refers to a legal system based on coded
laws. Laws are codified through parliamentary statutes,
following the tradition of compiling rules. Law and Mores
What is legal is not necessarily moral and what is moral is not
Common Law System – is based on case law or judge-made law necessarily legal. A moral obligation does not establish a
that relies on precedents set by judges in a court case. juridical or legally enforceable tie, still, there is a relation
recognized by law itself between law and morality. In fact,
Islamic law or Sharia law (“the way to follow”) – is based on moral customs are among the sources of law.
the moral precepts of Islam.
According to Tolentitno, “laws and morals have a common
ethical basis and spring from the same source – the SOCIAL
Main Issues in Law CONSCIENCE.

Law, Authority, and Force A contractual obligation is considered void when it has an
How does one become a legal authority and is authorized to illicit cause. It is illicit if contrary not just to law, but also to
make laws? “morals, good customs, public order and public policy.”
- According to Max Weber, in Politics and a
Vocation, there are three (3) ways how authority
is establishes itself in society: CHARISMA, Religious/Sectarian vis-à-vis Secular/Public Morality
TRADITION, and LAW. By morality, there is distinction between SECULAR morality and
a. CHARISMA – the personal ascendancy that an RELIGIOUS morality.
individual gains in society through his passion
and determination for a cause or a mission, and DISTINCTIONS between RELIGIOUS and SECULAR morality:
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his success gives him an aura of legitimacy. 1. In States where there is no separation between
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b. TRADITION – is where the authority from a Church and State, the law must reflect what is
leader, due to his magnanimity or extent of considered moral by the established religion. For

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Philosophy and Theory of Law

From the book of Bernardo

states that follow the non-establishment clause, a LEGAL THEORIES

secular morality known as “public morals” are Legal Theory is an inquiry into the nature of law.
considerations of the law. It is a morality not based on When one develop a legal thesis, or write arguments or opinion, it
religion but on popular ideals, source of law, and is important to know from what theory one is dissecting a
common aspirations as expressed in policies. question of law.
Obedience to the law is itself and Secular Morality.
2. Religious morality concerned with private matters 1. The Teleological or Natural Law Theory
and preferences, such as sexuality and the censorship - Looks into the principles, purpose, and end (telos)
of ideas and beliefs, while Secular morality concerns of law. It goes to the question of the why of the law.
itself with public order and affairs. - Law serves a higher universal order based on a
3. Religious morality’s ultimate basis is the word of “natural order,” which we can discover through our
God as expressed though a sacred medium, while common human reason and validated by human
Secular morality is associated with “natural law experience.
morality” according to common-held principles of - Natural law is an example of “normative
reason, justice, and equity, deemed as “natural” jurisprudence,” which evaluates the purposes or
aspirations of men. norms behind the law. According to natural law,
nature is how people normally behave and is expected
to behave. Human nature, in particular, is rational.
Law, Justice and Equality - Finnis wrote that there are seven (7) “basic goods”
• Justice is “equality in proportion,” to render to each what natural to man: life, knowledge, play, aesthetic
is due. Justice to give what one deserves according to the experience, sociability (friendship), practical
same standard, measure, or formula. reasonableness, and religion (transcendence).
• On the basis of the same standard, provisions will not be
equal if the circumstances are not equal, but must be equal if 2. The Positivist Theory
the circumstances are the same. This is referred to “legal or - Life itself has rules, and we call them law. We
formal equality.” follow the law because it is the law, period. This is
• This is where reasonable classification comes in. Everyone what the positivist school maintains. The rules
classified to the same category is to be treated the same themselves make the cut.
way. Like shall be treated alike. Equality does not have to - Positivists are positive on what the law “posits” by the
mean same treatment, but “proportionate treatment.” authority given to the State or by socially accepted
rules. Also known as “the command theory,”
positivism highlights obedience to the content and
Egalitarianism expression of the law with the adage “dura lex, sed
• The statement that “all men are born equal” refers to lex” (the law may be hard, but that is the law) and
one’s humanity, meaning, we are all equal in terms of being “quad principi placuit legis habet vigorem”
human, and the rights pertaining to the fact of being (whatever pleases the prince hs the force of law)
human, regardless or status. - David Hume argued that we cannot demonstrate on
• This does not mean that all men are born in equal condition what the law should be, but on the facts on what the
and will live equally. Special arrangements, however, may law is (“social fact thesis”). We argue on legal, not on
be made to eliminate or minimize historical or cultural moral issues.
disadvantages resulting from conditions that we do not - Hart of the Law: For Hart, law is system of “social
have choices, such s gender, being born to poverty, rules.” The regime of unofficial rules has three
handicaps, race, religion, or color. defects: first, doubts arose as to the precise scope of the
• Equality before the law is a universal enfranchisement so rules s there was no authoritative reference, such as
that everyone will at least have the “equal chance” to through a declaration of text; second, the static
develop as any other human will do. Life is not fair traditional character of the rules as there were no
indeed, but since man, despite the inequities of life, means to deliberately abrogate defunct customary
aspires for fairness and a more just society, he must rules; and third, the absence of an official and
make equality a goal. consistent monopoly of sanctions.
• That “men are created equal” means “equal with certain
unalienable rights, among which are life, liberty, and the 3. The Interpretivist or Constructivist Theory
pursuit of happiness.” - What the law means is what the judges of the law
would read it to mean.
- As conceived by Ronald Dworkin – points that the
law is more than explicitly adopted rules. It has merits
The Blindfold of Justice or principles behind them that can be “interpreted” or
• A theory of Justice, John Rawls proposed that we should “construed” by the courts.
do a “reflective equilibrium” whenever we make laws - Jurisprudence assumes an abstract foundation.
or decisions. - There are two (2) dimensions of legal interpretation:
Formal dimension looks for logical consistency
between principles and past decisions; Substantive
dimension looks for principles that best “explain” or
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“justify” the law, which is construed as having a moral

rights-base dimension. It is the “integrity of the law”
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that entitles it to a claim to out obedience.

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Philosophy and Theory of Law

From the book of Bernardo

4. The Get-Real Theory happiness in society through “wealth

- Sometimes labelled as “pragmatic jurisprudence,” maximization.”
focuses on these human realties that are often - Law appropriately take its cue from economics and
overlook by hard law, technicalities, and abstract plays a larger role in modern legal system.
policies.
- It tells the law and law practitioner to get real – if law 4. Forms-and-Fundamentals Approach
reflects practical experience. - Legal formalism or conceptualism holds that the law
- Justice Oliver Homes Jr. was an avowed proponent is a strict science governed by formal axioms, legal
of legal realism. He argues on “the bad man model,” principles, and rules of logic.
that in crafting a law or deciding always think from - Formalism is also referred to as “textualism” or the
the perspective of the bad man, not the good man as “plain meaning” approach to the law and
the bad man, at the end of the day, cares only for the “originalism” or the “original meaning” approach to
consequences of the law, of what the courts will do to the Constitution. Thus, when the meaning of the law is
him, and the rest are irrelevant. not clear, the Court may call the assistance of an
- Law is determined by the actual practices of courts, law amicus curiae, an expert of the law, to expose the real
officers, law enforcers; by real word practice. Human intent of the law.
factors and realities are unavoidable in hard cases, and - Formalism adheres to ethical constraints on a judge
judges must be able to take these into consideration. from deciding or opining on what the law should be or
should mean other than what the law says or does not
5. The Critical Theory say.
- The main tenet of this theory is that the law has been - Originalism says that judge should only “interpret” not
the means to enshrine and coercively impose the “construct.’
wishes of the dominant group or institutions. -
- Questions the law’s assumptions, such as the 5. Practice Theory
assumption that the people are fee, and that the - Philip Bobbit, wrote that the different approaches to
market is free. law, or modalities, have their own uses. One should
- It is associated with subversives as it aims for know how and when to use them in making
“deconstruction” of the law and used the arguments.
“hermeneutics of suspicion” to advance - The adoption of a particular mode leads to a different
marginalized causes. outcome or case opinion. Each mode has its own
“grammar” and its own “logic.”

FORMALIST SCHOOL OF INTERPRETATION:

1. The One-Upon-a-Time Approach
- The law is not simply made; it is in the making. It
rolls a story stuck in real events.
- The historical school holds that the law has a past and a
progression. It develops in a gradual and evolutionary
process and cannot be separated from its national or
indigenous character – from clannish, to folk beliefs, to
landmark events that shaped a nation.
- Law operates in a specific language, impressed by
cultural beliefs, traditions, customs, temperaments,
and the common experiences and consciousness
(geist) of a people. The law is therefore the product of
a national genius.

2. The Functional or Sociological Approach
- The law is both a means of social control an social
advancement.
- The sociological school looks into law as a measure
for behavioural conformity and social engineering.
- The theory is call “functional” by analogy to biology,
where every cell has different functions to maintain a
healthy organism so that each one’s different pursuits
are good to the whole society.
- The approach justifies “judicial activism” and
“judicial legislation” and is related to the Realist
Theory.

3. The Economic Approach
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- Judge Richard Posner: took the lead in “economic

jurisprudence” and “consequentialism,” For him,
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the purpose of the law is to increase the balance of

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