III. SHOULD LAWYERS CAST THE PHILOSOPHER’S STONE?

Every good law or case you study

was once a dream. Every good law or case you study was dismissed as impossible or impractical for
decades before it was enacted. Give your creative thoughts free reign, for it is only in the hearts and
dreams of people seeking a better world that true social justice has a chance. — William “Bill” Quigley,
Letter to a Law Student Interested in Social Justice The practice of law can itself be a practice of
philosophy. “Jurisprudence,” often associated with “case law,” in fact means the theory and study of law.
From the Latin juris and prudentia or the “prudence of law” or “practical knowledge of the law,”
jurisprudence is supposed to explain the nature, theory, development, and objective of a law. It is to know
the wisdom behind the law. 15

Through jurisprudence, a law earns more credulity and force, as one understands not only the what of the
law, but the how and why of it. John Austin in The Uses and Studies of Jurisprudence called
jurisprudence as “the knowledge of law as a science, combined with the art or practical habit or skill of
applying it.” What distinguishes an explanation or ratio of a case and an exposition of legal philosophy in
a case is that the latter explains the underlying concepts, theory, and evolution of a legal dispute. U.S.
Supreme Court Justice Oliver Wendell Holmes and Philippine Supreme Court Justice Reynato S. Puno
were among the legal luminaries who popularized writings and decisions articulating philosophy and
legal theory. In his “The Path of Law” (10 Harvard Law Review), Justice Holmes advised the study of
great philosophers and jurisprudents to understand how compelling ideas become a controlling force in
the development of laws. He lamented how some members of the bench and the bar mechanically pedal
the law and undervalue jurisprudence, when effective legal order depends much on insightful legal
philosophy. Meanwhile, Justice Puno poured scholarship on the legitimacy of laws by tracing legal
rational discourses through Western civilization. Puno’s writings appear in a collection by former
Supreme Court spokesman Jose Midas Marquez titled, The Constitutional Philosophy of Philippine
Jurisprudence: The Writings of Senior Associate Justice Reynato S. Puno. During the centenary of the
Philippine Judiciary in 2001, the Supreme Court also released a collection titled Supreme Court Decisions
as Philosophy, edited by Supreme Court Associate Justice Abraham Sarmiento. It culled major Supreme
Court decisions elucidating on legal doctrines, especially on political and human rights. How
jurisprudence — as legal philosophy — will be appreciated weighs heavily on how it is being taught in
law schools. Generally, law schools have been requiring Legal Philosophy or Legal Theory as a course
subject or an elective, and universities abroad offer postgraduate masters and doctors degrees in the
Philosophy of Law. Many law students pursue Philosophy or Political Science as a pre-law course, too.
Conversely, Philosophy students take Legal and Political Philosophy as a major field of study in their
undergraduate and postgraduate courses. It is not incidental that some lawyers have been great
progenitors of schools of thought. In England, there was Lord Chancellor Francis Bacon, the father of the
inductive scientific method. There was also the British lawyer and journalist Lord John Campbell;
Edmund Burke, the founder of modern conservatism; and Jeremy Bentham, the founder of modern
utilitarianism. In France, there was Hugo Grotius, the father of modern international law; and Charles
Louis Secondat Baron de Montesquieu, who conceived the three divisions of government. In the United
States, the Founding Fathers who happened to be lawyers were also political theorists. In India, there was
Mohandas K. Gandhi, known for popularizing non-violent resistance. In the Philippines, we had
Apolinario Mabini, the prime minister of the first Philippine Republic, referred to as the “Brains of the
Revolution”; and Marcelo H. Del Pilar, the propagandist editor of the La Solidaridad who worked for the
Royal Audiencia de Manila, the highest tribunal in the Philippines during the Spanish period. While the
School of Athens was known for its triumvirate of Socrates, Plato, and Aristotle, the University of Oxford
since the 70’s has revived debates on legal theory with its own triumvirate professors in law, namely
H.L.A Hart (champion of soft positivism), Ronald Dworkin (proconstructivism), and John Finnis (pro-
neo-Thomism). Currently, the Philippine Judicial Academy has devoted a division of continuing legal 16

education in philosophy chaired by Fr. Ranhillo Aquino, Dean of the San Beda Graduate School of Law.
Other advocates of legal philosophy in the Philippines include Justice Crisolito Pascual and Emmanuel
Fernando of the University of the Philippines; Justice Jorge Coquia of the University of Santo Tomas; and
Sen. Miriam Defensor-Santiago, who wrote on international law and the history of philosophy. While it is
necessary to pursue the degree of Law to be a lawyer, it is not true that one needs to take a degree in
Philosophy to be a philosopher. A penetrating decision or argumentation, streamed with deep analysis,
reflection and research, is itself a gem of philosophic intuition. The latter satisfies the question not just
what the law is, but ultimately, why the law must be so. Its exercise is a commitment not just in theory,
but to a meaningful life and a purposeful practice of law.

CHAPTER I CASE READINGS A PHILOSOPHER-JURIST ON THE STRUGGLE FOR LAW PIO

DURAN v. SALVADOR ABAD SANTOS (G.R. No. L-99, November 16, 1945) PERFECTO, J.,
dissenting:

At this moment we cannot refrain from repeating the words the outstanding philosopher-jurist Jhering
wrote in his little big book, “The Struggle for Law”: “ ‘I crave the law.’ In those four words, the poet has
described the relation of law in the subjective, to law in the objective, sense of the term meaning of the
struggle for law, in a manner better than any philosopher of the law could had done it. These four words
change Shylock’s claim into a question of the law of Venice. To what mighty, giant dimensions, does not
the weak man grow, when he speaks these words: It is no longer the Jew demanding his pound of flesh; it
is the law of Venice itself knocking at the door of Justice; for his rights and the law of Venice are one and
the same; they both stand or fall together. And when he finally succumbs under the weight of the judge’s
decision, who wipes out his rights by a shocking piece of pleasantry, when we see him pursued by bitter
scorn, bowed, broken, tottering on his way, who can help feeling that in him the law of Venice is
humbled; that it is not the Jew, Shylock, who moves painfully away, but the typical figure of the Jew of
the middle ages, that pariah of society who cried in vain for justice? His fate is eminently tragic, not
because his rights are him, but because he, a Jew of the middle ages, has faith in the law — we might say
just as if we were a Christian — a faith in the law firm as a rock which nothing can shake, and which the
judge himself feels until the catastrophe breaks upon him like a thunderclap, dispels the illusion and
teaches him that he is only the despise medieval Jew to whom justice is done by defrauding him. “The
picture of Shylock conjures up another before may mind, the no less historical than poetical one of
Michel Kohlhaas, which Heinrich von Dleist has described in his novel of that name with all the
fascination of truth. Shylock retires from the scene entirely br