PHILOSOPHY OF LAW
The rules and
Midterm Reviewer
Syllabus: Atty. Renato M. Galeon
Book: Legal Philosophy - Tabucanon
by Datu Esma MIkee P. Maruhom, EH 306 (2016)
I. Introduction
A. Definition & Nature of Philosophy of Law
Law is a rule of conduct, recognized by
custom or formal enactment which a
community considers as binding upon its
members.
Legal Philosophy is a systematic study that
seeks to understand the:
a. nature and essence of law;
b. its definition and elements;
c. the sources of its authority;
d. its various applications & development;
e. its role in the society.
Also known as jurisprudence or the science
and philosophy of law, it concerns itself with
fundamental questions like what is law as
such, and not what is Philippine law on say,
property.
It seeks to know the true nature of law, its
ultimate purpose and goal.
Five schools of jurisprudence
1. Naturalism
Law and morality are not separate, that
an unjust law is not a true law and that
the law must reflect the eternal verities
of justice and fairness.
2. Positivism
Believes that law and morality should be
separate, and that law is valid if it is
validly posited by a lawful government
or authority. Law is something ‘posited’
or made in accordance to socially
accepted rules.
3. Realism
Law is determined by ‘real world
practice’ and experience. Law is what the
lawmakers, judges, lawyers, business
people and society ‘do with it.’
4. Formalism
Law is a strict science governed by
formal axioms and principles which are
used by judges, using the rules of logic,
in deciding and determining the
outcome of a case.
procedures used in deciding cases are
not to be found externally but within the
system of elaborated ruled themselves.
5. Critical Legal Studies
Law is but an expression of the policy
goals of whoever happens to be, at that
particular moment of history, the
dominant social group. People
consented to the interests of the
‘dominant class’ not because they were
forced or ordered to do, but the
dominant class had organized a society
using hegemony.
II. Nature of Law
B. Law as Rules and Process
As rules
A common misconception of law,
looking at it as a set of rules and that
when a dispute arises, all a judge does is
find the right rule and apply it
mechanically, even ruthlessly.
It merely caters to efficiency and is
dismissive of the other aspects of
human experience, and does not factor
in the relationship of the litigants.
As process
Law may be regarded as a process, the
rules being merely an aspect of the
process. Laws are not just statutes per
se but the whole gamut of the life
experiences of lawmakers, law
enforcers, lawbreakers, or followers
such as lawyers, judges and legal
theorists.
C. Common Characteristics of Law
1. Obedience
A common characteristic of law.
Laws of man involve human conduct
which may or may not be obeyed.
They are potentially violable and
their obedience is anchored on
man’s freedom and will. Kant calls
this law in the sphere of freedom.
Other laws are inviolable: law of
gravity
2. Generality
Laws are ‘generally’ rather than
‘particularly’ framed. Decisions on a
legal question are made in advance
 of the circumstances of the
application.
3. Promulgation
From Aquinas’ Treatise on Law, Is
essential to law considering that: a)
natural law is promulgated, can be
gleaned from the fact that God
instilled natural law into the man’s
mind; b) those who are not present
during the promulgation are bound
to observe the law in that they can be
notified by others of the law after it
was promulgated; and c) durability of
written characters ensures that laws
may be continually promulgated
even to the future.
4. Rule of Law
Established legal principle which
posits that whenever a legal issue
presents itself, it must be decided by
applying the accepted principles of
law, setting aside the personal
discretion and will of a judge and
apply the law through the will of the
legislator.
*International law is that branch of law that
governs relationships between countries and
other multinational actors at the international
level.
Some argue that if a law is considered ‘binding’,
then it is not a true law:
a. No binding law that applies to all countries
b. No world congress legislating laws for
mankind
c. No world executive to enforce international
law if violated
Some argue that international law is a true law:
a. Applicability to all countries is not a
requirement for a rule to be considered a
true law
b. World congress and executive are not
essential components in the definition of
law
c. International customary norms and
treaties have binding effects: violations
risks retaliatory actions from the
community of nations around the world
D. Law within religious Dogma and tradition
1. Code of Hammurabi
Made by Hammurabi, King of Babylon.
United his country and claimed to have
received the Code of laws directly from
Shamas, the chief of gods. The Code was
based on the principle that justice
dispensed with by judges and rulers
should not be whimsical, arbitrary or
personal, but rather justice should abide
within defined and well-formulated rules
following to the adherence of truth,
equitable principles and retribution.
2. John Calvin
His rigorous theocracy is a more
contemporary example of complete
subordination of man and his laws to what
is perceived by the group as will of God.
Man is under the sovereignty of God, and
citizens made to swear a confession of
faith. Law was understood as ‘divine will’ as
understood by Calvin, or by the legislator.
3. Inquisition
Example of subordination of state law
under religious dogma. The Inquisition
tribunal was established by the Church in
1233 to supress heresy or dissenting
views. Excommunication was used at first,
but fines, flogging, imprisonment and
death followed. Trials were done in secret.
E. Law and Religion
There is no system of recorded law which from
its inception is completely separate from
religion. – Sir Henry Maine, Ancient Law
1. Jewish Law
a. Torah
Much of Jewish law is an offshoot of the
Ten Commandments, and later
incorporated the ‘Book’ or Torah.
Called Pentateuch by the Christians, it is
the first 5 books of the Old Testament,
ascribed to Moses. The Torah begins
with the creation of the Universe up to
the death of Moses. Includes the Jewish
people’s covenant with one God and
religious and social conduct.
Commentaries in the Torah are written
by the Soferim, interpreters that helped
keep the Jewish law, and to the new
conditions of life. They made the Jewish
law applicable to changing conditions
that helped defend the Hebrew culture
from being absorbed and obliterated
into other cultures.
 b. Mishnah
A collection of commentaries on written
Jewish law consisting of discussions
among the Rabbis, handed down orally
from 70 AD to 200 AD. The Mishnah
comments on the Torah, while the
Gemara comments on the Mishnah.
Both form the Talmud, divided into the
halakha (legal and ritual matters) and
the haggadah (ethical, theological and
folklorist matters).
c. Responsa
New genre of Jewish juristic writing after
the Talmud. This are juridical guidance
and opinions given by the rabbis on day
to day details of Jewish life.
Human Rights in Jewish Law
Genesis story affirms both the
sovereignty of God and the sacredness
of individual. Killing a person is
tantamount to diminishing the reality of
God’s own self, as people are created in
His image.
The three major festivals Pesach, Succot
and Shavuot commemorate the
Exodus, basis of Jewish affirmation to
the human right to political liberty.
Purim commemorates the events in the
Book of Ester, affirms the rights of the
minority.
2. Islamic Law
Shari’a is believed by Muslims to be of
divine origin, and is one of the world’s great
legal systems. Much is derived from the
Koran, supplying the basic tenets but not
the details. The interpreters of the Koran
built a comprehensive and detailed juristic
system.
Hadith, collection of the teachings of
Muhammad (SAW) and the stories of his life
is regarded as guide to living second only to
the Koran.
Human Rights in Islamic Law
In Islamic law, human rights are seen as
rights which all human beings ought to
have. These rights are deeply rooted in our
humanness that their denial or violation is
tantamount to a negation or degradation of
that which makes us human,
Farewell sermon of the Prophet
Muhammad (excerpt) encapsulates the
elimination of barrier and class:
All of you come from Adam, and
Adam is of dust. Indeed, the Arab is not
superior to the non-Arab, and the non-Arab is
not superior to the Arab. Nor is the fair
skinned superior to the dark skinned not the
dark skinned is superior to the fair skinned:
superiority comes from piety and the noblest
among you is the most pious.
3. Canon Law
Body of laws enacted by ecclesiastical
authority from the administration of the
Roman Catholic Church. Canon law is under
the Corpus Juris Canonici, until the
promulgation of the Codex Juris Canonici. A
new canon law was promulgated by Pope
John Paul II reducing the offenses carrying
automatic excommunication, extending
the ground of annulment, removing the
ban on marriage with non-Catholics, and
banning the trade union and political
activity by the priests.
Canon law contributed important concepts
in secular law which are still used today.
Human Rights in Canon Law
Human dignity is deeply rooted in Canon
law tradition. One emphasis is the distrust
of individualism and the emphasis on the
community.
The encyclical Rerum Novarum affirmed
‘man precedes the state’, that human
dignity is standard of the law. In Pacem in
Terris, protection of human rights is a basis
of world peace.
F. Law as custom
1. Savigny’s Doctrine of the Historical
School
Rudolf van Savigny, German jurist,
regarded law as a reflection of society’s
history, culture, wants and spirit.
The view is that the law is but a
crystallization of the group’s national or
tribal character. Law is written, and is
updated, by the evolutionary processes of
the group. Each country has its distinct
personality and institutions which are
shaped by its history and traditions.
 2. Ehrlich’s Sociological Approach into the
Nature of Law
Eugen Ehrlich, founder of the sociology of
law, center of legal development was not
in the law or jurisprudence per se but in
society. He coined ‘living law’ and believed
that family, group bond, custom and
religion produce internalized rules in a
person as inviolable as any law.
He cites example if queuing for cinema
tickets, when there is no ordinance that
mandates it. It is an internalized law. Law
has a richer and wider definition than that
found within statutes. Customs, social
habits, practices and policies in
communities likewise create law – “living
law.” Law takes its roots from the smallest
segments of society before becoming an
‘official’ law.
III. Kinds of Law
A. Natural law and Human Positive Law
1. Natural Law
Natural laws are priori (pre-existing)
principles and rights coming from
God, reason or both,
2. Positive law
Positive laws are posited, i.e.
promulgated at a particular time
hence a posteriori (existing after),
although the principles invoked may
be a priori.
IV. Sociology of Law
A. Functions of Law
Law may serve as a tool for social control,
dispute resolution, and social change.
1. Social Control
Done through threat or fear of
punishment and seldom based on
reward. Disobedience can have severe
repercussion; thus one is motivated to
obey for fear of the repercussions.
2. Dispute Resolution
Law traditionally resolves the more
serious disputes of society. Less
serious conflicts are settled through
negotiation, fist-fight or avoidance. As
conflict become more formalized, rules
and laws step in.
3. Social Change
Laws outlawing slavery, racial/religious
bias and prostitution had far-reaching
effects in the society. Local ordinances
prohibiting smoking in public vehicles
and building had reduced incidence of
second-hand smoking.
B. Social Theories of Law
1. Eugen Ehrlich
One of the founders of sociology of
law, calls societal norms as ‘living law’
that regulates social relationships and
helps strengthen society. He believes
that positive law which looks at law as
the sum of statutes and court
pronouncements could not adequately
capture the legal reality of a culture
and society. Thus he distinguished
between legal norms (legalistic) and
social norms (govern day to day
conduct).
Social norms permeate deeper into the
fabric and consciousness of society,
hence must be regarded a component
of law.
2. Emile Durkheim
Law as a tool for integration. As society
progresses from simple to complex,
the role of law changes. Theory of legal
change from repressive to restitutive
law.
Repressive laws are from small, close-
knit, highly religious and traditional
societies where a small infraction of
the rules is met with severe
repercussions. Stigmatizing to
violators. Society progresses to
become multi-cultural and highly
technological, whose members are
highly educated yet individualistic, laws
shift to restitutive role. Restitutive laws
allows violators to make amends for
damage, and reintegration to the
mainstream. Violators are not
stigmatized for life.
3. Max Weber
Pre-industrial laws are personalistic
and partial to privileged sectors. Legal
‘double-standard’ seems to exist, such
that the influential few get away or get
around the law. In contrast, modern
laws are based on procedures that
apply fairly and equally to all.
 Legal study of law involves the internal
structures and looks at law’s meaning
and scope. Sociological study of law
involves the external structures and
focuses on the law’s role or impact
upon reaching society.
4. Talcott Parsons
Believes that law’s role society is to be
that integrativist mechanism of social
control, Law has an integrative
function, and the lawyer’s role is crucial
in that he mediates between the
technical requirements of the legal
system and the needs of individual
members of society for justice and
equal treatment.
5. Neo-Marxist Views of Law
Many noted that Marx’s views of law is
similar to his view of the state and its
systems, which is that of an instrument
of control serving the interests of the
privileged.
C. Theories why law came into being
1. Consensus Theory
Posits that there is an agreement
among members of the society in
transforming their norms and values
into laws, giving the former more
strength and general enforcement.
Laws are institutionalized versions of
pre-existing customary norms.
2. Conflict Theory
Emphasizes interests (over norms and
values) and how these interests
interact to form conflicts which are but
normal facts of societal life. Coercion
rather than consensus cause social
order. Law serves the powerful over
the weak, and law is used by state to
promote and protect itself.
V. Ends and Effects of Law: Full Development
of Human Personality
1. Aristotle’s view
His solution was to strengthen the law, and
make it the regulator of human conduct.
He proposes the adoption of a state
constitution from where all other laws of
the land will be measured, and citizens will
be forewarned of the legitimate and
illegitimate courses of action. This is to
safeguard the society from accidental
factors in governance such as human
whims, caprices and differences in
personality of leaders.
Laws should aim to produce and preserve
happiness for the political society. A rightly
framed law bids man to a life of complete
virtue – good to oneself and neighbors.
Obedience to a good law is an exercise of
complete virtue – called justice.
Man is social animal by nature, and
actualize potential only within the matrix
of society. The goal of the state is to
produce people who are good, as persons
and citizens.
Man is a political animal, hence it is his
nature to congregate in groups and act as
groups. The goal of the collective (aided by
politics) is the same with the goal of the
individual (aided by ethics): achieve vitality,
well-being and happiness.
2. Aquinas
He countered the objections that said that
laws as such do not necessarily make good
men.
a. Arguments holding that laws do not
make a man good
Arguments include that: a) virtue and
not law which makes man good; b)
goodness precedes law (good men
follow the law because they are good,
and bad men violate the law by their
being bad); c) there are people who are
good to the community but bad on
those referring to themselves; and d)
since some laws are tyrannical and
abusive, their effects would be
necessary harmful.
Aquinas’ reply:
Aquinas counters that: a) every law’s
aim is to be obeyed by those to whom
the law is addressed, and that the
proper effect of the law is to lead its
subjects to their proper virtue. Since
virtue make men good, it follows that
the proper effect of law is to make men
good.
That b) goodness as such is not the
only reason why people obey the law.
Some obey for the fear of
consequences such as punishment; c)
since the individual is part of the whole,
 the goodness of the individual will be
felt proportionate to the common
good; and d) a tyrannical law is not true
law, it is a perversion of law and one
that is not accord with reason.
VI. Ends and effects of law: Justice
A. Significance of Justice
Primary significance is its tendency
to counteract the crude egoism of
the individual.
B. Definitions of Justice
Aristotle: giving everyone his due.
A rule of justice is natural that has
the same validity everywhere, it is
conventional that in the first
instance it may be settled in one
way or the other.
Encyclopedia Britannica:
In philosophy, justice is the concept
of a proper proportion between a
person’s deserts and the good and
bad things that befall or are allotted
to him or her.
C. Justice of obedience to higher
law
For Cicero, the obedience to the
supreme or higher moral law, even
if the process violates human law, is
to pay homage to true justice.
This is found in Antigone by
Sophocles, when she chose to
violate the lower law in not allowing
his brothers to be buried by being
rebels, gave her brother a proper
burial in obedience to ‘higher law’
than the ‘lower law of the land’.
D. Social Justice
The Supreme Court defined that
social justice is neither communism
nor despotism, nor atomism, nor
anarchy but the humanization of
laws and the equalization of social
and economic forces by the State
so that justice in its rational and
objectively secular conception may
at least be proximated.
Social justice means the promotion
of the welfare of the people, the
adoption of the Government of
measures calculated to ensure
economic stability of all the
components of society…
E. Types of Justice
1. Utilitarian Justice
It looks at law or an act’s ability to
maximize benefit for society. Imposition
of punishment is justified in its ability to
bring in social benefits.
2. Retributive Justice
Aim is to avenge the wrongs done by
society. Seeks to enact rules which
avenge crimes proportional to their
gravity.
3. Restorative Justice
It is not as concerned with punishment
or retribution but rather in making the
victim whole and reintegrating the
offender back to society.
4. Distributive Justice
It concerns itself with questions of the
distribution or allocation of societal
goods such as liberties, wealth and
income. Concern is in the fairness,
proportionality in the distribution of
money, property, privileges and
opportunities, education or rights.
a. Strict Egalitarianism
Radical equality – every person
should have the same level of goods
and services, to be treated non-
discriminately. Proves problematic
since not all people have the same
needs.
b. Difference Principle
Allows inequality in the distribution
of goods only if the inequality will
benefit the worst-off members of
society.
c. Desert-based Principle
One that focuses on merit or effort
or some other quality. Work harder,
greater share of the wealth.
d. Libertarianism
Equal liberty principle: each
individual should have an equal
right to basic liberties.
VII. Ends and effects of law: Wisdom and
Law as Heuristic
A. What is wisdom
Wisdom has been considered as the
pinnacle of human development. With a)
mature and integrated personality; b)
superior judgment in difficult life matters;
c) ability to cope up with the vicissitudes of
life.

B. Plato’s view of law and wisdom

In his work, The Republic, considered a
possibility of establishing a state in which
law is omitted, and society is ruled by the
wisdom of a philosopher king. Law has
limits and human institutions – including
law – must aim for wisdom.

In Statesman, law does not perfectly

comprehend what is noblest and most just
for all, therefore cannot enforce what’s
best.

Best thing of all is not that the law should

rule, but a man should rule, supposing him
to have wisdom and royal power.

In Laws, law are opinions of the future –

expectations. When expectation is fear –
the opinion is fear; if it is hope – pleasure.
When these opinions and expectations are
embodied in a decree by the state, it is the
Law.

The customized fit of the intelligence of a

wise man is the best answer to the ills of
society.

C. Law as Heuristic
Branch of logic dealing with discovery and
finding out, method that provides
assistance in discovering a truth or solving
a problem. It is a useful hypothesis that
leads to a solution that is more or less near
to the best possible answer.

Law as heuristic means law is viewed as a

rule of thumb, or general principle which is
true in most cases but neither accurate nor
reliable in all cases.