This action might not be possible to undo. Are you sure you want to continue?
http://attylaserna.blogspot.com/2007/10/legal-philosophy-historical-school.html I wrote this short paper in 1998 as part of my Ll.M. course on Legal Philosophy. The LAWYERS REVIEW had published it.
THE "HISTORICAL SCHOOL" OF LEGAL PHILOSOPHY : ITS RELEVANCE TO THE PHILIPPINES
Atty. MANUEL LASERNA JR. THE THESIS OF THE PAPER The author is of the view that the "historical school" of the philosophy of law is the most relevant school of thought in the Philippine setting, for the reasons described in this paper.
REFERENCES The author made use of the following references: 1. Pascual, Crisolito, LL.M. INTRODUCTION TO LEGAL PHILOSOPHY. Quezon City: UP Law Center, 1972. 2. Hall, Jerome. BobbsMerill Co. READINGS IN JURISPRUDENCE. Indianapolis: The
3. Friedman, Lawrence M. THE LEGAL SYSTEM: A SOCIAL SCIENCE PERSPECTIVE. New York: Russell Sage Foundation. 4. Hibbert, W. Nembhard. JURISPRUDENCE. London: Sweet and Maxwell Ltd., 1932.
xxx These phenomena xxx are but the particular faculties and tendencies of an individual people xxx. the leading voice of the historical school. the historical school was a reaction to the philosophical school or natural law school (Pascual. wrote of the "common conviction" and "kindred consciousness" of the people as the origin of law: In the earliest times to which authentic history extends. that it is first developed by custom and popular faith. Savigny. peculiar to the people. in ordinary but not quite correct language. The founders of the historical school were Prof. by internal silently-operating powers. the law will be found to have already attained a fixed character.. 87-88.FOUNDERS OF HISTORICAL SCHOOL In terms of chronology the historical school was preceded by the philosophical school or the natural law school. Eichhorn. Freidrich Karl von Savigny and Prof.e. 71). 70). ORIGIN OF LAW: COMMON CONSCIOUSNESS OF THE PEOPLE In his book On the Vocation of our Age for Legislation and Jurisprudence. xxx. that all law is originally formed in the manner. Prof. in which. xxx. next by jurisprudence. (Hall. therefore. the kindred consciousness of an inward necessity xxx. customary law is said to have been formed: i. not by the arbitrary will of a law-giver. published in Germany in 1814. like their language.. -. In fact. therefore. of this theory is.everywhere. manners and constitution. who taught law and jurisprudence at the University of Berlin in the early part of the 19th century (id. The sum. That which binds them into one whole is the common conviction of the people. underscoring supplied) .
infra).A Juristic Encyclopedia. refers to Law and Jurisprudence. in times past. and yet we meet with people daily. speaks of the "national or popular character". On the contrary he held the theory that law is "particular or peculiar" to a people. Hence the Rights of peoples are different. is the only protection against a species of self-delusion xxx. history and culture may be different from those of other peoples and cultures in the world. growth and development of law and jurisprudence: (NOTE: The use of the word Right. whose customs. the holding that which is peculiar to ourselves to be common to human-nature in general. which was looked upon as the immediate emanation of reason. author of the book Outlines of Jurisprudence as the Science of Right . F.CRITICISM OF THE NATURAL LAW SCHOOL Prof. Savigny did not believe in the concept of "universality" of law. xxx The historical spirit. a natural law was formed our of the (Roman) Institutes. There is no one now who would not regard this proceeding with pity. by the omission of certain prominent peculiarities. which is. . just as in its Language and Customs. (id. next to "pure reason" or "rationalism". namely. G. published in Germany in 1887.) NATIONAL MIND AND SPIRIT OF THE PEOPLE: ORIGIN OF LAW Prof. This individuality forms what we call the national or popular character. xxx. dissimilar and unequal in nature and tendency. The Peoples are themselves to be regarded as different individualities. and the peculiar characteristics of a national are exhibited in its System of Right. who hold their juridical notions and opinions to be the offspring of pure reason. with capital R. in the following quotations. Prachta. Thus. Puchta. "common consciousness" and "national mind or spirit of the people" as a basis of the origin. as used by Prof. the main foundation of the theory of the natural law school. and a disciple of the historical school. xxx. too. for no earthly reason but because they are ignorant of their origin.
It has thus the property of a common practice or Custom. and against its individualism.a reaction against its rationalism.. as reflected in the Consciousness of its members. xxx. Instead of pure ratio. is the first of the modes in which Right arises. Natural Law and the Theory of Society. This union rests upon a certain relationship of body and mind. published in Cambridge in 1934. and is immediately connected with it. xxx. . the national mind or spirit of the people. in a word. and hence the Right that has arisen in this form is called CUSTOMARY RIGHT. It attaches itself to the national character at its different stages of culture. A principle of Right becomes a fact by being recognized as such in the common conviction of those to whom it is applicable. underscoring supplied). and it is the source of human or natural Right. discussing the roots and theoretical foundation of the historical school in his book Introduction to Gierke. Through this common consciousness of Right. in a reaction against Natural Law . 89-91. and of the convictions of Right which stir and operate in the minds of the individuals. there was to be substituted the Volksgeist xxx. because it stands nearest to the primary source of all human Right. Right is the common will of the persons or members who are included in a sphere of Right. the members of a people are bound together in a definite union. The consciousness which permeates the members of a people in common xxx constitutes. wrote: The beginnings of the School of Historical Law in Germany are rooted. its extends beyond the intimacy of the inner family bond. in their immediate origins. as by common Language and a common Religion. Ernest Barker. xxx. and arises out of an actual division of the race of mankind. and it adapts itself to the changing wants and requirements of the People. ROMANTIC MOVEMENT AND VOLKSGEIST AND VOLKSRECHT Prof. (id.All human Right presupposes a common Consciousness as its source. xxx. against its universalism. The consequence of this mode of origination induces a diversity of Right among the various peoples. The Conviction of the People. xxx (The System of Right) develops with the People.
In the words of Emil Lask. from place to place. is essentially Volksrecht: it is the product of each nation. even social values proceed from the substratum of the folk-soul. the life and spirit of the people. it is xxx oriented to the time. Pascual summarizes the volksgeist and volksrecht thus: xxx The folk-soul. 91-92). folk tales. place.. and literature. writes that the roots of the historical school may be traced to "the Romantic movement xxx as early as 1770". the law is not universal. (id. which is the basic foundation of historical jurisprudence. Volksrecht means kautusanngsambayanan. the . (Law) is only national. on this view. that is to say.and individuality of a particular people. which are not found in others. language. provides a sense of beginning and unfolding of law.e. xxxx From the observation post of historical jurisprudence. i. And in relation to positive law. which is to say that positive law should be a reflection of the common consciousness and spirit of the people. Volksgeist means the diwangsambayanan. and from people to people. The reason for this is that social milieu varies from time to time.Law. xxx . of the national genius. Barker. Like a people's language and other cultural attributes. summarizing the theory of the historical school. character. FOLK-SOUL AND FOLK-MIND The German word Volks means sambayanan. there is not only one and the same law for all peoples everywhere. xxx. that the historical school is "a philosophy of the Folk (people)" expressed in folk songs. xxx.. people or nation. Filipino legal-philosophy author Prof. Prof. the concept of the folk-soul takes on the form of a theory of what positive law ought to be.
growth and development of Philippine law and jurisprudence. Together they form the common consciousness and intelligence of the people. an acronym which. Idiosyncracies. underscoring supplied). Longings. Usages. Each element is a treasury of the national character of the people. Pascual. (id. Pascual on his discussion of the elements of the folk-soul: The folk-soul is composed of several elements. Traditions. Customs. Arts. OBLUTIACS: ACRONYM FOR THE ELEMENTS OF VOLKSGEIST AND VOLKSRECHT Constituting the folk-soul or folk-mind of a people are their OBLUTIACS. and prejudices of a people produced by institutions of human nature reacting upon one another. Folklore This element is composed of the beliefs and traditions of a .). Together they reveal the people's cultural identity.law is the product of the genius or intelligence of that group of people. this Report extensively quotes Prof. Beliefs. xxx (Pascual. the law is the product "of the huge mass of opinions. PHILIPPINE FOLK-SOUL AND FOLK-MIND Applying the analytical perspective of the historical school to the origin. the acknowledged leader of historical jurisprudence in England. superstitions. means the people's: Opinions. and even Superstitions. xxx. 1. In the words of Sir Henry Summer Maine. In different words. law of a group of people is peculiar only to that group. xxx. beliefs. according to Prof. 71-96.
the Biagni Lam-ang. which is recorded in the Maragtas. Sentiments are more or less the settled sense of the people.people. which are very rare. the epic of the Ilocano region. the epic of the Bornean colonizers of the Island of Panay. There are others. notably the Indarapatra. They constitute of the folk learning or folk wisdom (paniniwala) xxx.. xxx an ancient narrative of the various phases of the early life in the Bicol region during the reign of Handiong. the epic of the Muslims of Lake Lanao. (id. A good example in the Philippines is the epic of Ibalon. The folklore may survive in the form of epic tales. underscoring supplied). 2.. 3. Folkway xxx It is composed of usages and customs. But a great deal of people's beliefs and traditions have survived in the form of telling parables (talinghaga) and riddles (bugtong). . where DatuSumakwel's code of laws is found. the Tuwaang of the Bogobos of Davao. like the Darangan. The folksaying is composed of the proverbial maxims (salawikain) and sentiments (sabi) of the people. Folksaying This element of the folksoul is composed of the opinions xxx. the rural reflections of a people. xxx. Maxims are short pithy statements containing a general doctrine or truth. xxx. xxx. xxx.
folkways or kaugalian have become definite norms of activity and conduct. Folkart xxx This category. folkdances connected with celebrations or play like wedding or thanksgiving. xxx. xxx. lamentations (panaghoy). To a great extent the first objects were basically utilitarian or symbolic. longings (mithi). 5. 4. The obligatory nature of the folkways stems from the deep-seated desire of the members of the group to keep the respect and esteem of the group by upholding them. xxx. xxx. folkdances related with work like planting and harvesting.Folkways or kaugalian are rational and widespread habitual courses of actions or practices (ugali) which have been followed and enforced by a group of people. Later came the objects of beauty and color. Folkdance xxx It is possible that they were regarded as religious ceremonies in the beginning. folkdances which have to do with ceremonials like war or hunting. Thus. broadly known in Pilipino as sining. xxx. or fertility. is composed of the skill and art peculiar to a people. and aspirations (adhika). xxx. xxx. . rejection. Folksong xxx This form of expression of a people's interests and feelings contains their rejoicings (diyuna). and folkdances which have to do with love and affection like dances of courtship. folkways provided the first sources of rules xxx. xxx. xxx Thus in the early times. xxx There are appropriate folk dances dedicated tot he people's object of reverence and awe. 6.
. THE STATE: HIGHEST PERSONIFICATION OF THE FOLK-SOUL AND FOLK-MIND As human relations progressed from family or clan to community and further to large-scale territory. xxx The State is thus considered as the highest expression of the folk-soul or diwa of a people. where the reins of government were placed in the hands of. 92-95. and practiced by. Following the above-mentioned pattern of expansion of human relations of the people.. i. it is the highest national structure erected by the socio-political development of the people. underscoring supplied). the State with a national government. a direct appeal to the head of the family or clan was enough to resolve human conflicts. as progress became more complicated." (id. a sense of national awareness grew among the people. something like a communal type of dispute resolution mechanism emerged. the body politic is . Indeed. Eventually. At the family-clan level.e. 86.(id. the process of keeping peace and order grew apace with it.. the state is regarded as the highest expression or personification of the volksgeist or diwa of the people. Second. a professional group in the community and where the people were bound by common centers of interests and purposes. without shedding his narrower relationship with his family and region. 87). even subordinated. the law lis found and not deliberately made. and. "where the individual.. (id. in certain instances. to the national interests. BACKBONE OF THE HISTORICAL SCHOOL Pascual writes that from the viewpoint of the historical school there are two important points that stand out: First. became related. original underscoring by the author). the pattern of dispute resolution and maintenance of peace and order gave way to the more complex machinery of the body politic. In another way of saying it. As progress continued.
(id. LAW IS HISTORICALLY DETERMINED In the view of the historical school. It does not proceed from the peremptory or arbitrary will or wish of the legislators or judges. "Asian values" differ from those of the Western world. not imposed."). (id. "the law is not deliberately made by the effort of human reason. citing Prof. 89). 822 ). the folksoul (which) awakens this conviction xxx. In the words of Mr. but is the product of common conviction xxx. and (that) the law is historically determined.considered by historical jurisprudence as the final juristic personification of a nation or people. Quoting Dean Pound. citing Dean Pound. Puchta. 36 Harvard Law Review. Justice Cardozo. xxx. RELEVANCE AND APPLICABILITY OF THE HISTORICAL SCHOOL TO THE PHILIPPINE SETTING Law is an experience and it relates to human life (folk-soul and folk-mind) itself. Pascual writes: xxx Reason alone cannot work miracles in legal development nor work wonders in constitution making. therefore. 87-88. This is the most fundamental precept of the historical school. 88." (id. . who wrote that "the institution of the State is the highest act of a people. 88). decision making. or legislation.. 802.. "history built up the system and the law that went with it. it is found. The growth of law is a historical process. codification.." (id.
with at least eight major dialects (Tagalog. Ibanag. one that is dictated upon on the people without their consent. A legal system that is divorced from the spirit and the soul of the people. self-confidence. to be rejected -. it is safe to say that at the present stage in its contemporary political and legal history the Philippines. in fact. etc. Aeta. to be a cause for rebellion and dismemberment of the nation.and. as a nationstate. Kapampangan. it is doomed to fail.Despite the fact that for a while since 1946. is destined to be rejected by its supposed beneficiaries and its supposed source of sovereignty. to be ignored. Mangyan. It know that its people must share common values and a common national vision if it were to continue to grow and mature as a nation.). the Philippines has suffered from "identity crisis" brought about by more than three centuries of Spanish colonization. not to mention the dialects of its various cultural minorities (Tausog. its "oblutiacs" and national consciousness or national spirit.e. IlongoHiligaynon).it must be open to other schools of thought in legal philosophy and. The Philippines is a multi-cultural society.. Otherwise. It thus must harmonize in a beautiful cultural and philosophical symmetry with their oblutiacs. long before the Westerners "discovered" Asia. i. Igorot. The law is the very identity. Tasaday. the spirit and the core of the people. The Philippine knows its roots. Australia and other countries) requires serious study of the precepts of the historical school law and the participation of the different branches of the social sciences. Integrating their customs and traditions into the national legal mainstream. lived and practiced since time immemorial -. instead of being its unifying and stabilizing fiber. Ilocano. Cebuano. Panggalatok. in all other areas of human life. direction and vision. worst. However. Bicolano. whereby the whole world begins to shrink into one small global village whose constituents must interact with and learn from each other if the world were to grow and survive in peace and stability -. has achieved a remarkable degree of maturity. fifty years of American rule. which its people have shared. . It knows that its legal system ought to be based on the thoughts of its heroes and founding fathers (its nationalistic sense of achieving its own destiny as a people) and that it must be founded on the spirit of its shared cultural values.among fellow Asians. the Philippines also knows that -.in the light of current trends towards globalization. pursuant to the policy of multiculturalism (as in the case of the United States. to be forgotten. and five years of Japanese regime. the soul. Waray.
especially those of morality and ethics. as they relate to law and jurisprudence. like the tenets of inherent. Enlightened Reason. promote and proceed from their national soul. spirit. Despite its usefulness as a tool of analysis. and regardless of location and culture. however. which are immutable and objective in character and which proceed from an Ultimate Source or an Absolute Good. must respect. there are basic principles of law and jurisprudence that are. consciousness. inalienable and universal human rights. regardless of cultural and racial origins of peoples and political boundaries of men." Perhaps each school of thought has its particular use for certain times and places or its own relative wisdom viz certain issues at specific times and for specific peoples. universal and objective in nature. * It tends to promote juristic instability as the oblutiacs of various cultural minorities may not be in line with the shared mainstream oblutiacs.THE LIMITATIONS OF THE HISTORICAL SCHOOL The historical school is useful in explaining the origin. the perspective of the historical school is limited. * There are certain principles. * Some customs are per se barbaric. if they were to be binding on a people. regardless of time and space. so to speak. especially in the modern times and in the light of international law. or Natural Law and Natural Justice. No one school of thought is able to monopolize the full explanation and study of the "general theory of law" or the "ultimate science of jurisprudence. . growth and development of law and jurisprudence and in suggesting a conceptual framework that states that law and jurisprudence. inhuman and unreasonable. in that: * It fails to give proper importance to the fact that in certain fundamental legal issues. * It tends to discourage law reform. customs and tradition. indeed.
and the Jus Gentium. most of all. the world saw the rise of Protestant philosophers. mutual respect. The earliest codified Roman laws were the Jus Civilis. During the Reformation Period. Philosophy means "love of wisdom. contracts. peace. reason and truth. This is a basic postulate in the historical school of law. justice. When one studies the philosophy of law. fairness. the Reformation period and the Modern period. which was applicable to Roman citizens. Today (modern period). A COMPENDIUM OF THE VARIOUS SCHOOLS OF THOUGH IN LEGAL PHILOSOPHY Law is evolutionary. goodwill. Emperor Justinian's greatest contribution to the growth of the legal system of the world was his codification of all Roman laws. and it develops like language. the Medieval period. wisdom. and power. There is a need to discuss the salient thoughts of the other schools of legal philosophy which have emerged from the Greek period. Oxford. the Roman period. Legal philosophy is rooted in the history of philosophy itself. They. sanctions. A. and.In the end all schools of thought converge on these basic common grounds and goals: truth. as in the areas of family. freedom. slavery. he is forced to study the history of philosophy itself. and Cambridge beleves that there is no law unless it is promulgated by the State.as against force. too. The Romans made law systematic. . have their individual shares in and contributions to the growth and development of the legal and philosophical systems of mankind. compassion. reason and truth -.both of which were administered by a "praetor" or a judge. the world saw the rise of the sociological school. persons. which was applicable to the legal relations of Roman citizens with aliens ("perigrino") -. it arises out of customs and traditions. the functional school. POSITIVIST SCHOOL This school of thought developed at Yale. etc. the idea that mankind is a family of pilgrims travelling to their final destiny. and the school of modern legal realism. Law is written down and explicit. Law and justice are all about wisdom." The ideal law or legal system is one that is rooted in wisdom.
In his pure theory of law. it is uniform for all. authoritative. Duty (to obey and revere the law and to do good to fellow men) is the highest virtue. supremacy of reason and free will (as God-given and inherent in man). not on what it ought to be. Moral rightness is a matter of "motives" and legal rightness refers to "external acts. according to a universal law. or in the maxim on which it proceeds. Natural law and moral law do not matter. He is not a chattel. the "empirical imperative") that makes law and compels the conscience of man to obey the law. . "Every action is right which in itself. or normative.e. His ideal society is one where all men possess the virtue of duty to do good. equality). permissive. To Kelsen. B." Kant criticized Rossaeu's social contract theory because Kant believed that human rights are not contracted but are inherent in man (dignity. Law is not a moral concept. law is objective. For law to be stable. Man is a moral individual. Coercion and sanctions enforce law. the focus is on "the law as it is"." In his Metaphysics of Ethics. To Austin. It is the expression of the will of the state. Dura lexsedlex expresses the meat of the positivist school of law. and empirical. not metaphysics. is such that it can co-exist with the freedom of the will of each and all. Doing an act not out of "duty" (good will) is immoral. IMMANUEL KANT Kant was an advocate of the natural law theory. law is created by acts of men. freedom. It is reason that makes law and obeys law. An advocate of human dignity (man as end in himself). of all non-legal elements. It is not made by God but by a superior sovereign. In his "pure theory of law. who are liable to suffer penalties in case of violation thereof (authoritative enforcement system). Law is the conscious will and command of the sovereign imposed on the subjects." Kelsen argued the removal of moral connotations and value judgments from law. Law may be prescriptive. "Practical reason" (the "good will" in man. it must be based on empirical science. not by God. Law is objective and precise. i. and universal law of morality. Law is a positive norm of conduct. It must be made as exact and as objective as the science of mathematics. though it may be legal.The foremost proponent of the positivist school of law were Austin. hence. commanding. Man knows what is natural right or natural law because he is rational and the precepts of natural law are inherently written in his heart and mind (conscience). equality. freedom. It must be free from metaphysical speculation. Kant wrote. Kelsen and Hobbes. not subjective. authoritative. and mutuality of rights.
." "theory of ethical and legal pragmatism (empiricism) and experientialism. it adheres to the tenets of "pragmatic ethics" or "ethical relativism" as it aims to serve the interests of society with the least friction. Law is pragmatic and dynamic." The main factors that define the law are expediency and the convenience of society." Its proponents were Sanders. not the folk-soul or the pressures from the powerful elite." In a sense. public. and that natural law is inherent in the heart of men. "legal positivism" and "legal realism. MODERN LEGAL REALISM It is sometimes called "social legal realism. All of these must be considered in the "legal ordering" of society (private rights and obligations vs. The "interests of society"." is the main guidepost of the functional school. It focuses on the question: "Will this law work?" Law is one of experience. where compromise fails. some interests must give in. It adheres to. Its main proponent is Dean Roscoe Pound." or "social science school of law. Kant and St. is the source of law." "modern legal realism. Since not all social conflicts can be compromised. Storm and Holmes. Thomas agree that law is based on reason for the common good." It focuses on the "operation and effects" of law in relation to the interests of society. It is also called the "theory of sociological jurisprudence". Montesquieu wrote that law is an evolutionary process. social interests). C. or "social utilitarianism.In a sense. purposive legislation. and social (or jural). It is a tool of "social control" or "social engineering. the tools of arbitration. and decisive executive action must come in. Law is a tool for the "balancing of interests" in society. D. The greatest good for the greatest number. "sociology of law. and is actually a type of. There are three kinds of interests: individual. Dewey. In social engineering." "American legal realism. that law is universal. FUNCTIONAL SCHOOL The functional school of law developed in the United States. judicial action.
flexible and dynamic. The source of law is the social experience of the people. Unless a case arises out of the interpretation and enforcement of a written law. and affected by all kinds of "metalegal stimuli". and the doctrine of duralexsedlex) did not serve democracy and justice and that many legal procedures. Justice is equated with equality. A law is merely a law on paper unless a case arises to interpret it. and it called for the democratization of republicanism. Law is pragmatic. i. The official promulgation of a law is not necessarily equal to the justness of its contents. It is the adjudicative process of the judiciary which defines. It assailed courts for moving from legal analysis and reasoning to law-making (judicial legislation and judicial activism). The movement criticized the doctrine of stare decisis because it entrenched existing injustice in the legal system and that it protected the ruling elite. interprets. empirical and scientific. and applies the law. who determines and applies the law. Out of this school rose the "critical legal studies movement" in the United States. It is also relative. there is no law because there is no judicial interpretation. It focuses its study on "the law that is". with biases and prejudices. formalities and technicalities impeded the administration of justice and alienated the people from the justice system. It is an instrument of social control. with law as an expression of the folk-soul of the people. influenced by modern radical social theories. is a real person. congressional acts are not law but are a source of law. That is the true source of law and the nature of law.It believes that the law is what the courts say it is. which. an imperfect human being." Moral norms and natural law postulates do not decide court cases or determine social behavior. not on "the law that ought to be. looked at law as being imposed by the ruling class or elite in society who controls the tools of production. the coldness of the law.e. Fact-finding is the most difficult and the most crucial task of courts. It exposed the weaknesses of the idealistic concept of democracy. He is subject to all kinds of real socio-psychological pressures. The movement advanced the vision of positive equality (free open society). the law is what the courts say it is and how the courts interpret and apply it (jurisprudence). It argued that legal objectivism and legal formalism (legal positivism. In modern legal realism. It argued that there were "indeterminate factors" in the judicial process which influenced the dynamics of law. In this school of thought. As stated earlier. popular democracy versus elitist democracy. The end of law is "social contentment". the emphasis is on the judicial process. The judge. rituals. . The school of modern legal realism criticizes the natural law school or the philosophical school because it believes that law has no metaphysical source.
When the working class shall have ultimately succeeded in destroying the old system. and the exploitation of one class by another. Marxism identifies with the proletariat (workers). and the state owns all means and modes of production. a classless society will be born. classless society is created. The theory of class struggle provides that only the working class can destroy the old system and ultimately create a classless society. Wage labor does not create property but it begets capital for exploitation by the capitalists. supremacy of the State. surplus value. The theory of surplus value provides that labor is a commodity that creates surplus value which is exploited by capitalists. state and law wither away. fix and impose the law on the exploited working class. . the people govern themselves (self-government). and the inevitability of war among capitalist states caused by competition." From this theory proceeded the concepts of "class struggle" (laborers versus capitalists). In the interim (socialism). Marxism calls for the absolute abolition of private property. The ruling elite (capitalists) determine. define. and state and law will "wither away" (utopia). Arguing for collectivism and centralized economic planning. and class struggle. "The workers must destroy the state. Lenin wrote that state and law are instruments of class oppression. Human history is the history of class struggle. class struggles ends. the "dictatorship of the proletariat" is necessary to smash the control of the capitalist class.E. Law is a product of the economic system of society. Historical materialism provides that the economic system is the infrastructure of the political system (economic determinism). When utopia is achieved. MARXIST OR COMMUNIST SCHOOL Karl Marx applied Hegel's dialectical method. There is a perpetual struggle between the productive forces (labor) versus those who control the tools and modes of production (capitalists). and not simply seize it." In the transitional stage. the need for centralized economic and political planning. with one political party in control of the state whose vision and mission are to serve the interests of the working people). Three major theories predominate Marxism: historical materialism. communal life rules human relations. the state must keep class conflicts within bounds of order (hence. greed and technology. class antagonism. He was the proponent of "dialectical materialism.
St. love. H. a great Greek philosopher. St. A law is obeyed because of the persuasion of reason (reasonableness test). HEGELIAN PHILOSOPHY Immanuel Kant influenced Hegel in his philosophy of law. dignity. He described natural law as the participation of man in eternal or divine law thru his gift of reason. compassion.g. the quest for justice. foremost among whom was St. Like Schelling and Fichte. the latter being the . income or wealth. A law which is contrary to divine law is no law at all. e. Every concept leads to its opposite (thesis-anti thesis-synthesis) and that there is an unending progress from thesis to antithesis and to synthesis. Thomas wrote the voluminous Summa Theologica. that it is a continuous process of democratization of social values. reason is the ultimate essence of the world or absolute reality." To him. truth. POLICY SCIENCE SCHOOL The policy science school of law developed at the Yale School of Law. NATURAL LAW PHILOSOPHY The natural law school of legal philosophy was advocated by the Catholic Church and its theologians. freedom. that it is a means for the equitable distribution of the social values. and peace. The precepts of natural law are inherent in man and are written by God and reason in his heart. Expounded by Lasswell and McDougal (Yale University). These values are translated by means of policy guidelines of the state. equality. Thomas adopted and christianized the thoughts of Aristotle. Hegel was an "speculative idealist" and an advocate of rationalism: "Whatever is rational is real and whatever is real is rational. and that the seven basic social values (power. safety and health. The Catholic Church dominated the medieval period and it had the best opportunity to develop the philosophy of natural law during such period. G. Thomas Aquinas. knowledge or enlightenment. respect. The policy science school is thus an advocacy of social values. liberty and equality) should guide law-making and the legal ordering of society. the policy science school argues law is not a mere body of rules.F.
JURAL AND NON-JURAL LAWS Jurisprudence is a science of how the law is applied by the courts." It is part of the concept of man that he is free. Divine law. and court decisions. e. statutes.g. Hegel justified war or revolution based on and as an application of the dialectical method (struggle of ideas). which are of positive law origin. are codeoriented. This is called the "dialectical method" (the triadic process).. administrative rules and regulations. Hegel wrote. Jural law is the "lawyer's law" enforceable in court. ethics culminates in the state and the state is the ethical idea and reason turned into reality: "In the organization of the state." The state is a manifestation of the divine will. To Hegel.g. moral law. he opposed the democratic or republican form of government because of its "subjectivism and atomism. where man reaches his dignity as an independent person. being of common law origin. I. He agreed with Roussaeu that in the "true state" it is the "universal" (the law) that governs and "the individual of his own free will subjects himself to its rule. He wrote that all history is an evolutionary process whose ultimate goal is true liberty. The United States and the United Kingdom. . Non-jural law is the "unwritten law"." He preferred the authoritarian state. opinions of jurists. .. It answers the question: What does the court say? Its basic foundation is the doctrine of stare decisis.. private contracts. natural law and the folk-soul of the people may be said to belong to the category of non-jural law. the divine enters into the real. and that liberty is only possible in a state. while most countries in Europe. e.reconciliation of thesis and antithesis on a higher level. which may not be enforceable in court and yet influences the way jural law is applied by the courts. customs and traditions. are precedentoriented. The paradox was that in his latter years.
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue listening from where you left off, or restart the preview.