Philosophy of Law https://www.britannica.

com/topic/philosophy-of-law/

Syllabus

https://www.thoughtco.com/why-laws-exist-721458

Intro

Law – a Code of Conduct with provisions for punishment

THE FOUR ELEMENTS

1. Reasonable Ordinance
2. For the common good
3. Promulgated
4. By legitimate authority

EIGHT ROUTE OF FAILURE

1) Lack of definitive rules
2) Failure to make public
3) Unclear or obscure legislation
4) Retroactive laws
5) Contradictions
6) Impossible demands on subjects
7) Instability
8) Discrepancy between legislature and administration (implementation)

Day 1

Philosophy – definition
Ratio Legis vs Verba Legis
Machiavelli – Magna Carta
Rules of Procedure are only tools crafted to facilitate the attainment of justice. Their
strict and rigid application must be eschewed, if they result in technicalities that tend
to frustrate rather than promote substantial justice. (League of Cities v Comelec)
Spirit of law determines its construction
Common Law v Statutory Law
Legal System: Executive, Legislative, and Judiciary
Phil legal system – SC CA RTC MTC – Constitutional Comm
Prosecutors / PAO
Court system vs US Jury / British Inquisitorial / Adversarial
Common Law vs Statutory Law

Administration – where to appeal ? Exhaustion of Admin Remedies

Executive – Alter-ego doctrine.
Legislative- process of passing bills
Judiciary – 15 member. Authorized to promulgate Rule of Procedure
Judicial Review – actual controversies
Constitutional Commissions : COA, Civil Service, Comelec
Day 2 https://iep.utm.edu/law-phil/

Day 3 Law and Government

State: people , territory, government, sovereignty

regimes: Democratic; Republican; Parliamentarian; Authoritarian

Functions of State: Constituent & Ministrant

Woodrow Wilson enumerates constituent functions as follows:
1. Keeping of order and providing protection
2. Fixing legal relations between man and wife, parents and children
3. Regulation of holding tranfer of properties
4. Determination of Contractual rights
5. Definition and punishment of crime
6. Administration of justice in civil cases
7. Determination of political duties/privileges
8. Dealing of state with foreign powers
Ministrant functions:
1) Do for public welfare those that private entities would not do
2) Gov’t should do things because it is better equipped

Parens Patriae
Gov’t – de jure vs de facto
Belligerency status
Inherent Powers of State
a) Police Power – prohibition/restriction of rights for public good
b) Eminent Domain – taking of private property w/ just compensation
c) Taxation – lifeblood theory
Just compensation – def of fair market value

Sovereignty ; power resides in the people

State has inherent right o existence/ self-defense
Act of State Doctrine : invoking this will prevent national courts from ruling or
interfering with an act of the executive
Executive Privilege ; Act of the chief executive which should not be subject to question
by other branches of gov’t
State cannot be sued without its consent – you cannot sue the power that gave you
your right to sue
International Law : Doctrine of Incorporation / Transformation
Legitimacy : 1986 EDSA Revolution – revolutionary gov’t

Constitution ; fundamental law / spring cannot rise higher than its source
Filipino First policy Mla Hotel Case
Self executing provision vs those requiring legislation (anti dynasty law)
Bill of Rights – Magna Carta
Public Accountability
Law and Morality

Judaeo Christian origin – God gave man knowledge of right and wrong

Utilitarianism – criterion of moral goodness = greatest happiness for greatest # people

Deontological Theory – based on Duty, not necessarily on good
1. Virtue Jurisprudence : justice = virtue
2. Secular and Religious morality – religious beliefs carry practical consequences
and affect our everyday actions ..
3. Virtue jurisprudence – Plato describes justice as the ultimate virtue
Church and State – state will not support any religion
Estrada v Escritor
Marriage / Divorce
Freedom of expression – except libel and obscenity
Free to say but not to act out

Law and Equality

Simple equality – every citizen given the same good/benefit
Egalitarianism – removal of economic inequalities. Equality based on one’s worth
Equity
Equality before the law – Equal Protection of the law –
Discrimination – classification, when allowed: DGEA
a) Based on substantial Distinctions
b) Germane to the purpose of the law
c) Applies to Existing conditions
d) Applies to All

Law and Justice

Inherent in law p259
Justice is a virtue establishing rational Order – Plato
Libertarian concept – human beings have natural rights
O’Brien Test for regulations: regulation is justified if
1) It is within the constitutional powers of the gov’t
2) Furthers important gov’t interest
3) If unrelated to suppression of free speech
4) Or if suppression of speech is incidental and not greater than the interest
Fruit of the Poisonous Tree doctrine
Concept of illegal search
Civil Code Art 19 – abuse of right – catch-all provision
Mercury Drug case – Dormicum / Dor… torts
Social Justice – Calalang v Williams
Labor – Rivera vs Home ??
Agrarian Reform
Act 3326 - prescription

Crime and Punishment

Others
Species of law

Substantive / remedial (substantive due process / procedural due process)

Public / private law
Civil law
Public or political law
International Law
Common Law
Sharia Law

Main Issue

Law, Authority , Force

Law and morals

Legal vs right/wrong

THEORIES

Natural Law Theory – emanates from God

Mencius _ man is inherently good viz-a-viz inherently evil

Positivist Theory – (Command Theory) – Law command and subjects obey. dura lex
sed lex

Interpretivist/Constructivist Theory – judges need to interpret what is not stated

within the written law

Critical Theory – laws made for the majority in power

Realist Theory

Natural Law
P1: the rules must be expressed in general terms;
P2: the rules must be publicly promulgated;
P3: the rules must be prospective in effect;
P4: the rules must be expressed in understandable terms;
P5: the rules must be consistent with one another;
P6: the rules must not require conduct beyond the powers of the affected parties;
P7: the rules must not be changed so frequently that the subject cannot rely on them; and
P8: the rules must be administered in a manner consistent with their wording.
Positivist Thoery
Conventionality Thesis –
law is valid because of tradition / convention
Social Fact Thesis –
The Social Fact Thesis asserts that legal validity is a function of certain social facts. Borrowing
heavily from Jeremy Bentham, John Austin (1995) argues that the principal distinguishing feature of a legal
system is the presence of a sovereign who is habitually obeyed by most people in the society, but not in the
habit of obeying any determinate human superior. On Austin’s view, a rule R is legally valid (that is, is a
law) in a society S if and only if R is commanded by the sovereign in S and is backed up with the threat of
a sanction. The relevant social fact
Separability Thesis –
the Separability Thesis asserts that law and morality are conceptually distinct

Richard Dworkin’s 3rd Theory

In deciding hard cases, for example, judges often invoke moral principles that Dworkin believes
do not derive their legal authority from the social criteria of legality contained in a rule of recognition
(Dworkin 1977, p. 40). Nevertheless, since judges are bound to consider such principles when relevant,
they must be characterized as law. Thus, Dworkin concludes, “if we treat principles as law we must reject
the positivists’ first tenet, that the law of a community is distinguished from other social standards by
some test in the form of a master rule” (Dworkin 1977, p. 44).
Dworkin believes adjudication is and should be interpretive: “judges should decide hard cases by
interpreting the political structure of their community in the following, perhaps special way: by trying to
find the best justification they can find, in principles of political morality, for the structure as a whole, from
the most profound constitutional rules and arrangements to the details of, for example, the private law of
tort or contract” (Dworkin 1982, p. 165). There are, then, two elements of a successful interpretation.
First, since an interpretation is successful insofar as it justifies the particular practices of a particular
society, the interpretation must fit with those practices in the sense that it coheres with existing legal
materials defining the practices. Second, since an interpretation provides a moral justification for those
practices, it must present them in the best possible moral light. Thus, Dworkin argues, a judge should
strive to interpret a case in roughly the following way:
A thoughtful judge might establish for himself, for example, a rough “threshold” of fit which any
interpretation of data must meet in order to be “acceptable” on the dimension of fit, and then suppose
that if more than one interpretation of some part of the law meets this threshold, the choice among these
should be made, not through further and more precise comparisons between the two along that
dimension, but by choosing the interpretation which is “substantively” better, that is, which better
promotes the political ideals he thinks correct (Dworkin 1982, p. 171).

Why we need laws

Concept of Law / code of Hammurabi / ten commandments /

Judeo-Christian origin /

Legal Theories – Divine Law - Natural Law – Moral Law -

Judges witnesses codification of laws - lawyers

Origins of Law

Magna Carta
Constitution – Bill of rights -
Due Process : Procedural vs Substantive

Statutes

Roman Law -

Criminal vs Civil / other laws

Parties in a suit
Laws vs Rules
Criminal Law source – mostly Spanish
Civil Law sources – Spanish / Mexican & American

Proof - evidence
 Criminal – proof
Civil – burden of proof – civil code

Arbitration mediation, etc

Reasoning / Fallacies