Philosophia: Philosophy and Theory of Law by Bernardo 2017 Summary Notes

PHILOSOPHY OF LAW NOTES ARELLANO UNIVERSITY SCHOOL OF LAW 2022
BY RESHELLE PAULINE F. ABAD PROFESSOR: ATTY. JOYCE S. LAPUZ
with “case law,” in fact means the theory and

PHILAWSOPHIA: PHILOSOPHY AND THEORY OF study of law. From the Latin juris and prudentia
LAW BY BERNARDO 2017 or the “prudence of law” or “practical
knowledge of the law,” jurisprudence is
supposed to explain the nature, theory and
CHAPTER I development, and objective of a law. It is to
know the wisdom behind the law. Through
THE CASE FOR LAW jurisprudence, a law earns more credulity and
force, as one understands not only the what of
Lawyers and philosophers can be counted the law, but the how and why of it.
among the most misunderstood species. Many
lawyers are miscreants who murder the truth, What distinguishes an explanation or ratio of a
who twit the law, who defend the sum of society, case and an exposition of legal philosophy in a
and who are good in torturing the English case is that the latter explain the underlying
language. See how society judges lawyers as concepts, theory, and evolution of a legal
morally compromised, tempted, or hunted dispute.
beings: from the classic To Kill a Mokingbird, to
John Grisham flicks, to the series The Practice
and Suits, to The Exorcism of Emily Rose.
Postmodernists say that law is just a self-

aggrandized construct that perpetuates itself by
citation after citation of maxims. If it lives by
citation, it would die by non-citation. Even if we
need to live by some crude law, lawyers are held
to be unnecessary. John Lennon, composer of
the song “Imagine,” refused to write a song
about lawyers. He must have thought them
dispensable in the ideal world.
As society advances, must law also advance to

become more complex and intrusive?
The answer will depend on the political

tendencies of the law. The Socialist party-line is
“statism”: more State intervention and welfare
systems to have an equal and stable society and
economy. The state, in order to carefully plan
society, must through law spread its hold from
womb to tomb.
Should lawyers cast the philosopher’s stone?
The practice of law and itself be a practice of

philosophy. “Jurisprudence,” often associated
CHAPTER II The common good need not be the

utilitarian ethic of the “greatest
LEGAL ISSUES AND THEORIES happiness for the greatest number.”
Rather, it is the good of everyone. It
Law – Connotes binding communal rules
bears the common aspirations of all,
– the do’s and the don’ts.
not just the majority. As Aquinas
– a rule of conduct, just, obligatory,
suggested, the lawmaker should
– formulated by Legitimate power for
frame the law according to how the
common observance and benefit.
subject matter commonly occurs in
the majority of instances. It is not
expected that the legislator should
Classification of Law:
assume every single case possible,
1. Jural or human law – refers to
but should leave room for exceptions
sanctioned or enacted law such as
when the law need not be strictly
statutes, case laws, normative rules,
applied.
and percepts.
2. Non-jural or meta-legal law – is not
2. Promulgation – The final step in the
anchored on human promulgation,
law-making process is its notice to the
such as divine law, natural, and
public. The public should be able to
physical law.
take notice of the law, whether by
publication or by hear yeas as a
Classical Elements of Law:
matter of due process.
Reasonable ordinance (rationis ordination) –

3. Legitimate Authority – Due
Law is a reule of human acs, commanding man
promulgation must come from a
to act or refrain from acting. The Measure of
competent authority, not from some
human acts is human reason, for it is by reason
private individual or public official
that we perceive and put order into things.
unauthorized to enact a law. Law
must be issued by one who takes
A reasonable law is necessary, useful,
charge of the community, who wiled
clear in expression, and adapted to
the power to promote the common
place and time. The people are
interest.
moved to follow the law when it is
reasonable. If the law is unreasonable,
it would only invite define and dissent.
Modern Standards for the Rule of Law
1. The Common Good (bonus

The “Eight Routes of Failure” for any legal system
communis)- Principles of basic
by Lon Fuller:
humanity transformed once purely
1. The lack of definite rules or law, so that
ethical norms into legal claims. This
disputes have to be decided ad hoc.
does not mean that all ethical norms
2. Failure to publicize or make known to
should be law, but only those rules
the affected party the rules.
concerning man with his fellow man.
3. Unclear or obscure legislation.
4. Retroactive legislation.
5. Contradictions in the law.

6. Demands that are beyond the power ● Private – concerned with the rules
of affected parties to observe. governing the relationship of
7. Unstable legislation or frequent individuals.
changes in the law.
8. Discrepancies between ● Criminal – violation of public order
adjudication/administration and through punishable acts or
legislation. omissions
What constitutes “rule of law” in the modern ● Civil – the rules of civility such as
international arena, according to United on the property, marriage,
Nations? succession, contracts and torts or
private wrongs that result in
The rule of law refer to a principle of governance damages.
in which all persons, institutions and entities,
public and private, including the State itself, are ● Mercantile – deals with artificial
accountable to laws that are publicly personalities such as corporations
promulgated, equally enforced and and the management of business;
independently adjudicated, and which are that which regulates commercial
consistent with international human right norms transactions.
and standards.
Civil Code System – refers to a legal system
based on coded laws. Laws are codified
Species of Human Law through parliamentary statutes, following the
tradition of compiling rules.
1. As to whether a right or a procedure is
given: Common Law System – is based on case law or
judge-made law that relies on precedents set
● Substantive Law – establishes by judges in a court case.
rights, duties, and corollary
prohibitions. Islamic law or Sharia law (“the way to follow”) –
is based on the moral precepts of Islam.
● Remedial or Procedural or
Adjective Law – prescribes the
manner of administering, Main Issues in Law
enforcing, and appealing,
amending, and using legal rights Law, Authority, and Force
and claims.
How does one become a legal authority and is
2. As to scope: authorized to make laws?
● Public or Political Law – concerned
with the struts of government, the According to Max Weber, in Politics and
relationship between the a Vocation, there are three (3) ways
individual and the State. how authority is established itself in
society: CHARISMA, TRADITION, and LAW. on right and wrong, respect for authority, and
the elderly showing of good examples.
● CHARISMA – the personal ascendancy
that an individual gains in society through ● Social contact theorists think that constraint is
his passion and determination for a cause necessary and moral, since society is
or a mission, and his success gives him an presumed to have given consent to follow
aura of legitimacy. the law in establishing a Constitution and a
Big Brother – State. Through election and
● TRADITION – is where the authority from a suffrage, citizens are able to renew their
leader, due to his magnanimity or extent consent and to amend the terms through the
of influence in a society, is passed on his representatives they vote for. Anyone who
successors of heirs. does not wish to follow the law can opt to
leave the State, be a fugitive, and live in a
lawless society, if there is any. Shape up or
Society has made the leader its center ship out.
and identity, and will want to keep him
alive through his descendants who ● The psychologist, Sigmund Freud observed
suppose to bear his qualities. that reward and punishment are needed for
discipline; the way a child needs to be
● LAW – though legal dominion is trained, so does society. The machinery of
impersonal. The officers operate regular enforcement, police presence, etc.
through institutions, under given terms, ● Under international law, states are tempered
periods, and conditions. Laws are from using force against each other since
legitimate if they are enacted every member of the international
according to rules or procedure and community is by principle given equal status
individual merit. and consideration in domestic policies.
States are presumed to be civilized, matures,
self-determining, and independent.
Enforcing Law
Should Law be coercive to be enforceable? Law and Mores

Can rough laws spare the rod? What is legal is not necessarily moral and what
is moral is not necessarily legal. A moral
● Anarchists think that any form of violence or obligation does not establish a juridical or
coercion is wrong and offends morality; that legally enforceable tie, still, there is a relation
the only real law must be consensual, which recognized by law itself between law and
appeals to the conscience and free will of morality. In fact, moral customs are among the
constituents, not to threaten of punishment. sources of law.
● For followers of Confucius, the ingredients to According to Tolentitno, “laws and morals have
prevent and arrest crimes are not stern a common ethical basis and spring from the
punishments but a sense of shame for same source – the SOCIAL CONSCIENCE.
misbehaviour, cultivation of virtue, education
A contractual obligation is considered void one deserves according to the same

when it has an illicit cause. It is illicit if contrary not standard, measure, or formula.
just to law, but also to “morals, good customs, Proportionate.
public order and public policy.”
● On the basis of the same standard,
provisions will not be equal if the
Religious/Sectarian vis-à-vis Secular/Public circumstances are not equal, but must be
Morality equal if the circumstances are the same.
This is referred to “legal or formal equality.”
DISTINCTIONS between RELIGIOUS and SECULAR ● This is where reasonable classification

morality: comes in. Everyone classified to the same
category is to be treated the same way.
● In States where there is no separation Like shall be treated alike. Equality does not
between Church and State, the law must have to mean same treatment, but
reflect what is considered moral by the “proportionate treatment.”
established religion. For states that follow the
non-establishment clause, a secular morality
known as “public morals” are considerations Egalitarianism
of the law. It is a morality not based on
religion but on popular ideals, source of law, ● The statement that “all men are born
and common aspirations as expressed in equal” refers to one’s humanity, meaning,
policies. Obedience to the law of the state is we are all equal in terms of being human,
itself a principle of secular morality. and the rights pertaining to the fact of
being human, regardless or status.
● Religious morality concerned with private
matters and preferences, such as sexuality ● This does not mean that all men are born
and the censorship of ideas and beliefs, in equal condition and will live equally.
while Secular morality concerns itself with Special arrangements, however, may be
public order and affairs. made to eliminate or minimize historical or
cultural disadvantages resulting from
● Religious morality’s ultimate basis is the word conditions that we do not have choices,
of God as expressed though a sacred such s gender, being born to poverty,
medium, while Secular morality is associated handicaps, race, religion, or color.
with “natural law morality” according to
common-held principles of reason, justice, ● Equality before the law is a universal
and equity, deemed as “natural” aspirations enfranchisement so that everyone will at
of men. least have the “equal chance” to develop
as any other human will do. Life is not fair
indeed, but since man, despite the
Law, Justice and Equality inequities of life, aspires for fairness and a
more just society, he must make equality
● Justice is “equality in proportion,” to render a goal.
to each what is due. Justice to give what
● That “men are created equal” means knowledge, play, aesthetic

“equal with certain unalienable rights, experience, sociability (friendship),
among which are life, liberty, and the practical reasonableness, and religion
pursuit of happiness.” (transcendence).
2. The Positivist Theory

The Blindfold of Justice
● Life itself has rules, and we call them
● A theory of Justice, John Rawls proposed law. We follow the law because it is
that we should do a “reflective the law, period. This is what the
equilibrium” whenever we make laws or positivist school maintains. The rules
decisions. themselves make the cut.
● Positivists are positive on what the law

LEGAL THEORIES “posits” by the authority given to the
State or by socially accepted rules.
Legal Theory is an inquiry into the nature of law. Also known as “the command theory,”
When one develops a legal thesis, or write positivism highlights obedience to the
arguments or opinion, it is important to know content and expression of the law with
from what theory one is dissecting a question of the adage “dura lex, sed lex” (the law
law. may be hard, but that is the law) and
“quad principi placuit legis habet
1. The Teleological or Natural Law Theory vigorem” (whatever pleases the
prince hs the force of law)
● Looks into the principles, purpose, and
end (telos) of law. It goes to the ● David Hume argued that we cannot
question of the why of the law. demonstrate on what the law should
be, but on the facts on what the law is
● Law serves a higher universal order (“social fact thesis”). We argue on
based on a “natural order,” which we legal, not on moral issues.
can discover through our common
human reason and validated by ● Hart of the Law: For Hart, law is system
human experience. of “social rules.” The regime of
unofficial rules has three defects: first,
● Natural law is an example of doubts arose as to the precise scope
“normative jurisprudence,” which of the rules as there was no
evaluates the purposes or norms authoritative reference, such as
behind the law. According to natural through a declaration of text; second,
law, nature is how people normally the static traditional character of the
behave and is expected to behave. rules as there were no means to
Human nature, in particular, is rational. deliberately abrogate defunct
customary rules; and third, the
● Finnis wrote that there are seven (7) absence of an official and consistent
“basic goods” natural to man: life, monopoly of sanctions.
man, at the end of the day, cares only

3. The Interpretivist or Constructivist Theory for the consequences of the law, of
what the courts will do to him, and the
What the law means is what the judges rest are irrelevant.
of the law would read it to mean.
● Law is determined by the actual
● As conceived by Ronald Dworkin – practices of courts, law officers, law
points that the law is more than enforcers; by real word practice.
explicitly adopted rules. It has merits or Human factors and realities are
principles behind them that can be unavoidable in hard cases, and
“interpreted” or “construed” by the judges must be able to take these into
courts. consideration.
● Jurisprudence assumes an abstract 5. The Critical Theory

foundation.
● The main tenet of this theory is that the
● There are two (2) dimensions of legal law has been the means to enshrine
interpretation: Formal dimension looks and coercively impose the wishes of
for logical consistency between the dominant group or institutions.
principles and past decisions;
Substantive dimension looks for ● Questions the law’s assumptions, such
principles that best “explain” or “justify” as the assumption that the people are
the law, which is construed as having a fee, and that the market is free.
moral rights-base dimension. It is the
“integrity of the law” that entitles it to a ● It is associated with subversives as it
claim to out obedience. aims for “deconstruction” of the law
and used the “hermeneutics of
4. The Get-Real Theory suspicion” to advance marginalized
causes.
● Sometimes labelled as “pragmatic
jurisprudence,” focuses on these
human realties that are often overlook FORMALIST SCHOOL OF INTERPRETATION:
by hard law, technicalities, and
abstract policies. 1. The One-Upon-a-Time Approach
● It tells the law and law practitioner to
get real – if law reflects practical ● The law is not simply made; it is in the
experience. making. It rolls a story stuck in real
events.
● Justice Oliver Homes Jr. was an
avowed proponent of legal realism. He ● The historical school holds that the law
argues on “the bad man model,” that has a past and a progression. It
in crafting a law or deciding always develops in a gradual and
think from the perspective of the bad evolutionary process and cannot be
man, not the good man as the bad separated from its national or
indigenous character – from clannish, ● Law appropriately take its cue from
to folk beliefs, to landmark events that economics and plays a larger role in
shaped a nation. modern legal system.
● Law operates in a specific language, 4. Forms-and-Fundamentals Approach

impressed by cultural beliefs, traditions,
customs, temperaments, and the ● Legal formalism or conceptualism
common experiences and holds that the law is a strict science
consciousness (geist) of a people. The governed by formal axioms, legal
law is therefore the product of a principles, and rules of logic.
national genius.
● Formalism is also referred to as
2. The Functional or Sociological “textualism” or the “plain meaning”
Approach approach to the law and
“originalism” or the “original
● The law is both a means of social meaning” approach to the
control and social advancement. Constitution. Thus, when the meaning
of the law is not clear, the Court may
● The sociological school looks into law call the assistance of an amicus
as a measure for behavioural curiae, an expert of the law, to expose
conformity and social engineering. the real intent of the law.
● The theory is call “functional” by ● Formalism adheres to ethical

analogy to biology, where every cell constraints on a judge from deciding
has different functions to maintain a or opining on what the law should be
healthy organism so that each one’s or should mean other than what the
different pursuits are good to the whole law says or does not say.
society.
● Originalism says that judge should only
● The approach justifies “judicial “interpret” not “construct.’
activism” and “judicial legislation” and -
is related to the Realist Theory. 5. Practice Theory
3. The Economic Approach ● Philip Bobbit, wrote that the different

approaches to law, or modalities,
● Judge Richard Posner: took the lead in have their own uses. One should know
“economic jurisprudence” and how and when to use them in making
“consequentialism,” For him, the arguments.
purpose of the law is to increase the
balance of happiness in society ● The adoption of a particular mode
through “wealth maximization.” leads to a different outcome or case
opinion. Each mode has its own
“grammar” and its own “logic.”
● Bobbit identified six main modalities:
a. historical, which must be used when

the intention is to decipher what was
really meant by the framers of the law.
b. textual, in looking for what the law
simply declares or denies and how it
can be interpreted in contemporary
times.
c. structural, inferring rules from structures
and mandates.
d. doctrinal, applying rules generated by
precedent.
e. ethical or moral, appealing on the
ethos or ideals of a government
(teleological). Finally, prudential or
according to exigencies and the
calculus of costs and benefits.
CHAPTER III - NATURAL LAW, INTERNATIONAL wrong and that punishment for killing
LAW, AND THE CLASSIC PHILOSOPHERS another person is right.
I. THE NATURE OF MANKIND PHASES OF NATURAL LAW THEORY
● Ancient Greek philosophers believed that 1. Classical Phase

all men have a common nature that - by ancient Greek and Roman
separates us from other species — our philosophers who believed that human
ability to reason. reason is common among men and
along with this, the common precepts of
● The Golden Rule of all religions, “to do to right law and equity.
others what you want others done unto
you” makes sense because we humans 2. Scholastic Phase
share a common nature, an intelligent
nature. We are homo sapiens, the thinking - that taught that natural law is man’s
man. participation with eternal law. It was
called “Thomism” in reference to the
● Rationality frames how we should act in philosophy of St. Thomas Aquinas, as
our conscious states to function well. adopted by the Catholic Church.
Human beings reason on what is right and
wrong, fair and inappropriate, making 3. Enlightenment or Modern Phase
equity a precept of reason. Human
beings seek self-preservation and - that used natural law as a basis for
perpetuation, and unlike animals that natural rights and duties. Immanuel Kant
merely breed, humans form families and reformulated the Golden Rule into the
educate their children until they become “categorical imperative” of always
adults. acting the way one would like his act to
be the universal rule, also called as
● Finally, our minds think in structures. We “deontology”.
want order in society, and thus we need
the rule of laws. 4. International Law Phase
● Natural law, in philosophy, system of right - in reference to general principles of law

or justice held to be common to all and international rights, a common law
humans and derived from nature rather for all nations of men.
than from the rules of society, or positive
law.
II. WRESTLING FOR IDEAL LAW
● Unlike laws enacted by governments to
address specific needs or behaviors, ● Ralph Waldo Emerson once said, “All
natural law is universal, applying to philosophy is a footnote to Plato.”
everyone, everywhere, in the same way.
For example, natural law assumes that ● As a young man, Plato was interested in
everyone believes killing another person is politics. His original name was
“Aristocles,” and for his broad shoulder ● Our political Constitution is meant to
plates was renamed “Plato(n)” by his build an ideal government. We dream of
wrestling coach Ariston of Argos. the ideal romance, the ideal politics, the
ideal version of ourselves.
● Plato used his mentor Socrates as a
mouthpiece in his writings, such as in his ● The State is hierarchically composed of
earlier work on the ideal regime, The the noble ruler (its head), the warrior (the
Republic. Significantly, the “Socratic heart) and the workers (the stomach).
method” of dialogues or question and- The best state is run by the wisest. “The
answer dialectic has been the preferred noble should rule over the ignoble” and
formula of teaching in law schools in the one’s level of education is supposed to
United States and in the Philippines, to determine one’s social class.
decipher if the student really understands
what the law is saying and if he or she can 2. The Laws
stand debates and cross examination.
● stresses instead the rule of law as a
● Plato was referring to his mentor when he substitute to the rule of the philosopher.
wrote the Allegory of the Cave, which Reasoned thought must be embodied in
illustrates people who all their life lived in laws, and laws must have a preface so
their own caves and watched only their each citizen can understand the reason
shadows. behind the law. The need for preambles
and explanatory notes, as found in
TWO PHASES IN PLATO’S LEGAL PHILOSOPHY proposed bills and constitutions, goes
back to Plato.
1. The Republic
● Laws have to be preceded by
● envisions a Statist type of regime ruled by preambles to convince the people of
a benevolent dictator — an educated the rightness of their provisions.
philosopher-king. A contemporary
example would be the successful city-
state of Singapore, which rose to III. ARISTOTLE ON RATIONAL LAW
prosperity through the stern reforms of its
feared but beloved dictator, Lee Kwan ● Aristotle, the Father of Biology, is also
Yew. regarded as the Father of Natural Law,
having articulated the existence of
● Natural law, for Plato, is not the law of the natural justice or natural right (dikaion
common man, but the law of the ideal physikon). He was the student of Plato
man. The ideal man, much like our and the tutor of Alexander the Great,
modern concept of the Super Man, does
not exist, and yet we have a common ● Aristotle observed that human beings
idea of what a perfect man should be have a rational nature that must be
and this should be the goal of law. followed as a matter of law. Although
there are “particular or conventional
laws” suited to each culture and times,
there is a “common law,” a “natural law,” hound an aristocracy. The aim of a good
a “general justice” by which men can state is “the good life,” with the middle
objectively judge whether certain laws class as the basis of progress.
serve their being human.
● Democracies are more secure when
● Aristotle said that happiness is the final there is a large number of empowered
goal or end (telos) of all of man’s pursuits. middle class than when a population is
As much as people seek different goods, divided into the extremes of poor and
so do they have different views of what rich. Both the rich and the poor classes
can make them happy. have the tendency to inequity.
● Reason makes us perceive what is

excessive, pursue a balanced life, and to IV. THE STOICS ON JUS NATURALE
seek what is appropriate, fair, just, and
right; in other words, the “golden mean” ● The contribution of the Stoics to natural
of living. Virtue is the practice of reason. A law philosophy is its emphasis on the
happy person has the disposition (hexis) equality of all men, governed by the
to virtue (arete); being a man of same law. God is everywhere and
“character” (ethos), of moderation. everyone has a “divine spark.” The Stoics
believed that whatever one’s status in
life, whether as a wealthy and powerful
KINDS OF GOVERNMENT ACCORDING TO man like the Stoic emperor Marcus
ARISTOTLE Aurelius, or a slave like the Stoic
(M-A-P-T-O-R) Epictetus, one can find happiness in
doing what is good
• The first three are: ● The term “stoic” has been identified with
1. Monarchy (one-man rule), “apathy” because for Stoics, suppressing
2. Aristocracy (rule of few good men), and emotions and sensitivity to pleasure or
3. Polity (rule of men with equal merits). pain are needed to clear the mind of
what is really good.
• Their worst forms are the last three:
4. Tyranny ● Nature has few necessities, as the Stoic
5. Oligarchy, and Seneca advised. The State experiences
6. Radical democracy - Radical want when its citizens wish unlimited
democracy, according to Chantal artifices or luxuries, instead of being
Mouffe, is about “the abandonment of satisfied with provisions of nature that are
the idea of a perfect consensus, of a enough for human needs
harmonious collective will, and the
acceptance of the permanence of
conflicts and antagonisms.
● Polity or democracy is the most stable

since monarchy risks the intemperance of
its leader, while rivalries and infighting
V. ACQUINAS ON NATURAL INCLININATIONS exercise of reason to control sexual

passions.
FROM ETERNAL LAW TO NATURAL LAW 4. to live in community with other men, in
families, groups, and societies.
● According to Thomas Aquinas, the 5. to know the truth and to make our own
universe is governed by Divine Reason decisions.
through an eternal law. Everything that is
part of the universe partakes of the FROM NATURAL LAW TO HUMAN LAW
eternal law. The eternal law particular to
humans is called “natural law.” By the ● Natural law is a general guide with which
nature of man, he will know what he human law must fill in the details and the
ought to be and ought to do. gaps through statutes. Natural law, as a
general law of right, does not change
● What differentiates Aquinas from Aristotle because human nature stays the same.
and the secular philosophers of natural If human nature will change, then man
law is his argument for the necessity of will no longer be the same species. What
divine law, or law coming from divine changes are the application of natural
revelation. law to particular cases, and the
observance and articulation of it, in
● While natural law is enough to guide man human law
to his “natural ends,” divine law is needed
for him to realize his “supernatural ends.” ● For example, the principles of natural
Because of the uncertainty of human reason like the doctrine of self-defense
reason and the variety of philosophies, do not change, but the legal application
Aquinas argued that God has to reveal and expression do. Change in human
his true nature through sacred inspiration conditions, human errors or corrections,
and interventions in history. Human law customs, habits, and passions can make
and justice are also not always effective the human order of things to vary.
or correct, so there must be a divine law Human law is rightly changed as long as
to which people can ultimately appeal conductive to the common weal.
to.
● Aquinas explained that right can be two
Aquinas explained that the precepts of natural things: natural right or positive right.
law refer to five natural inclinations: Natural rights are those that each man
must give to another man out of equality.
1. to do good and avoid evil; Meanwhile, a positive right is borne by
2. by good, meaning that which helps agreement, either by private agreement
sustain our being, towards self- among individuals, or by public
preservation agreement, by the ruler and the
3. to perpetuate ourselves, which is why we community.
have sexual instincts that are meant for
procreation. Yet even if lust is natural, so
are shame and self-restraint, and the
VI. ENLIGHTENMENT PHILOSOPHERS ON NATURAL ● It is the law of nature to abide by pacts

RIGHTS mutually consented and entered into in
good faith, and thus, among states,
● Natural law’s emphasis from duties and treaties must similarly be honored (pacta
restrictions was turned into a language of sunt servanda) on the basis that
rights humanity has things in common that
makes citizens of all nations equal.
● Human rights are rights that flow from
human nature, from the demands and BLACKSTONE’S COMMENTARIES
dignity of being human, and therefore
should be given to every human being. ● For Sir William Blackstone, in his
The difference between positivist theory Commentaries on the Laws of England,
and natural law theory is that the former natural laws are eternal immutable laws
believes that rights are conventional, of good and evil that the Creator
borne from deliberate positive acts of enabled our reason to discern.
rulers and subjects, whereas for the latter,
rights are natural and inherent. ● Under the “declaratory theory of
precedent,” the judges do not create
● Under natural law, natural rights do not but only “declare,” expound, or lay
need to be created but only need to be down the existence of a custom, and
“recognized” or “declared.” Society is a expresses commonly shared values.
contract with natural rights as part of the Common law is the “accumulated
terms. wisdom of the ages.” The judge is “a
living oracle” of the law who gives
witness to it.
VII. NATURAL LAW AS THE LAW OF NATIONS ● The rule that natural reason has dictated
to all men is the law of nations. The law of
● Hugo Grotius, the Dutch jurist who wrote nations cannot be dictated by any
The Law on War and Peace (De Jure Belli particular State, or by any man, but
ac Pacis), made natural law the basis for depends entirely upon the rules of
a “law of nations.” It earned him the title natural law on the equality of men and
“Father of International Law.” According mutuality of contracts, treaties, leagues,
to Grotius, man desires to live with his own and agreements.
kind, in a society that is peaceful and
organized.
● Our need for good relations with others is

the basis of law. “For the very nature of
man which, even if we had no lack of
anything, would lead us into mutual
relations of society, is the mother of the
law of nature,” Grotius said.
JACQUEZ MARITAIN
● The law of nations is now known as

“international law.” Its first universal
document is grounded on natural law
theory. EX: Universal Declaration of
Human Rights - All subsequent UN
documents will carry the language of
declaring rights applicable to “every
person,” “every human being.”
● For Maritain, natural imperatives are

known through “connaturality” or our
direct acquaintance with human
experience. International law developed
from an understanding that there are
universal aspirations common to
humanity, demandable everywhere as a
matter of right and must be made
available to everyone. These are rights
inherent to being human to which no
State can exempt itself, and violations of
which will be regarded as crimes against
humanity and against the interest of the
international community.
● Jus cogens, meaning “compelling law,” is

the term given to international norms that
are considered peremptory and from
which no derogation is allowed under any
circumstances. Declarations of
international human rights use terms such
as “essential,” “universal,” “inviolable,”
and “inherent,” rooted in the belief in
natural rights.
CHAPTER IV be moral. Ius in Latin means “law.” It also

CIVIL LAW: THE ROMAN JURISTS means “right.” A Latin legal principle
imposes majesty and command
I. ROMAN LAW: ALL CODES LEAD TO ROME because it has the elements of what law
should be: crisp and clear.
• Before the advent of the written tradition, rules
of life were quipped by the ancients into wise ● The Romans also made use of the natural
sayings so these might be easily recalled, law theory to justify the universal
grasped, and preached. But the ancient application of jus gentium as the law of
Romans turned their civil axioms into legal the nations, while applying the jus civile
maxims, which “crystallize with its laconism a for its Roman citizens. The law of nations
thousand past experiences in humanity’s eternal must be the law common to all, which is
quest for what is just and right” natural law (jus naturale). It was the
Roman emperor Marcus Aurelius who
John Zane’s The Story of the Law traces the legal incorporated Stoic natural law
profession to the Roman court, made up of philosophy into Roman law.
“jurists” and “advocates.”
● The Corpus Iuris Civilis or the Justinian
1. JURISTS / JURICONSULTS Code (534 A.D.) was a collection of
- announce the principles of justice existing Roman laws made by a group of
in applying the law. scholars. It is composed of four (4) books:
- duty was to advise and counsel, 1. The Codex Constitutionum (code of
but under Augustus, their function ordinances)
became a public office providing 2. Digest or Pandects (common law )
responsa, sententiae, or regulae as 3. The Institutes (introduction to the law
a case demands, similar to for law students)
modern-day justices establishing 4. The Novellae Constitutiones Post
jurisprudence Codicem (supplementary new laws)
- Edict - collection of principles of
justice which supplemented • The new Civil Code of the Philippines in 1949
custom and statute considerably followed the Justinian structure
with:
2. ADVOCATES
- The head of the clan 1. Book I on Persons;
- an influential and persuasive 2. Book II and III on Property, Ownership,
person like Cicero and Pliny, to and its Modifications, and the Different
represent clients in his public Modes of Acquiring Ownership; and
appearances for free. 3. Book IV on Obligations and Contracts
- deliver speeches, write treatises,
and draw wills, consultations, and II. BREAKING THE CODE
pleadings in court.
● Roman Law used to be a subject in the
● Latin maxims are very proverbial since the Philippine legal curriculum.
Romans believed that what is legal must
● Institutiones - to be read to understand ● Wedlock or matrimony is the union of

civil law, since the structure, definitions, male and female, involving the habitual
distinctions, enumerations, and provisions intercourse of daily life
of the Civil Code can be traced to ● The age of puberty must be reached to
Roman Law. It also provides brief get married. If the children are still
explanations and illustrations. dependent, then the consent of parents
who exercise parental power must first
be obtained.
● Marriage between certain classes of
persons is forbidden, such as between an
ascendant and a descendant, including
father and daughter, grandfather and
granddaughter, mother and son,
grandmother and grandson, and ad
infinitum.
ON THE NATURE OF THE LAW
GUARDIANSHIP
The percepts of the law are:
● Guardianship is the authority and control
1. To live honestly;
over a free person. The law allows a
2. To injure no one; and
parent to appoint guardians in his will for
3. To give every man his due.
children who have not attained the age
of puberty.
The laws of states are governed by statutes.
● A guardian may be appointed for a
These are partly peculiar (civil law), partly
certain time, or conditionally.
common to man (law of nations). The latter refers
● A guardian cannot, however, be
to rules prescribed by natural reason for all men
appointed for a
to observe as the necessities of human life
particular matter or business, because his
require. The common nature of man is the
duties relating to the person.
reason for the mutuality of contracts; for
● No minor of either sex can sell anything
instance, sale, hire, partnership, deposit, loan for
without his or her guardian’s authority.
consumption, and others (Inst., Title II, 1).
THE LAW ON PERSONS

THE LAW ON PROPERTY
CHILDEN AND MARRIAGE

KINDS OF OWNERSHIP
● The unborn child, from conception, is
considered to have a presumptive status
1. private ownership, acquired by
distinct from the mother.
various titles
● Children born in wedlock are under
2. public ownership, which is for
paternal control.
common use,
● Emancipation liberates children from their
3. corporate ownership, belonging to a
parents.
society or a corporation;
4. res nullius, belonging to no one.
THE OWNERSHIP OF ANIMALS ● If he finds it in another man’s land by

accident, and without deliberately
● Wild animals, birds, fish, and all creatures searching for it, half of the treasure must
in the land, the sea, and the sky become be given to him as the finder. If a man
the property of their captors as soon as finds a treasure in public land, then half
they are caught; for natural reasons of it belongs to him and the other half to
entitles the first occupant to that which the treasury of the State.
previously had no owner.
● But as soon as it has escaped from his LAND TITLE

control and recovered its natural liberty, ● When a thing is sold and delivered, it
the animal ceases to be owned and will does not become the purchaser’s
belong to the first person who property until he has paid the price to the
subsequently catches it. vendor, or satisfied him in some other
way, as by securing someone else to
RIGHT OF ACCESSION accept liability for him, or by pledge
● If the soil in a river has been added into
one’s land by alluvion, it is considered USUFRUCTUARY
appropriated. Alluvion is a gradual and ● Usufruct is the right of using and taking
imperceptible accumulation of soil. the fruits of another’s property. It is
● When an island rises in the sea, it belongs extinguished along with the extinction of
to the first occupant; for, until occupied, it that property. Usufruct also ceases by
is held to belong to no one. the death of the usufructuary, by loss of
● If a river divides into two channels, and by status, by improper use, and by non-
uniting again these channels transform a exercise during the period fixed by law
man’s land into an island, the ownership
of that land is in no way altered. ● The term “fruits,” when used in animals,
● A new object belongs to the owner of the include their young.
materials or to its maker.
● If materials belonging to two persons are SERVITUDES
mixed by consent — for instance, if they • The following are rights relative to
mix their wines, or melt together their gold “country estates”: iter, the right of
or silver — the result of the mixture belongs passage for passerby; actus, the right of
to them in common. driving beasts or vehicles; via, the right of
● If a man builds on his land using another’s going, walking, and driving anything;
materials, then the building is deemed to and aquaeductus, the right of
be the landowner’s property, for buildings conducting water over another man’s
become part of the ground on which land.
they stand.
● A writing becomes part of the paper or • Servitudes relative to “town estates” are
parchment, much as buildings and sown rights that are attached to buildings such
crops become part of the soil. as the obligation to support the weight of
● If a man finds a treasure in his own land, a neighbor’s house; to allow beams into
he is adjudged to be the owner of it. one’s wall; to receive the rain from a
neighbor’s roof from a gutter into his yard;

the converse right of exemption from any OBLIGATIONS AND CONTRACTS
of these obligations; and the right of An obligation is a legal bond, with which we are
preventing a neighbor from raising his bound to perform an act. It has four kinds:
building lest one’s view of lights be 1. contractual,
obstructed 2. quasi-contractual,
3. delictal, and
4. quasi-delictal
OCCUPATION AND POSSESSION

• If a man takes possession of a property
abandoned by its previous owner, he at once SPECIAL CONTRACTS
becomes the new owner. A thing is said to be
abandoned if its owner has thrown it away with SALES
deliberate intent • The contract of purchase and sale is
complete when the price is agreed upon, and
DONATION even before the price or any earnest is paid.
Another mode of acquiring property is through Earnest money is evidence of the completion of
gifts. Gifts are of two kinds; (1) those made in the contract.
contemplation of death, and (2) those not so
made. In the first, if the donor survives the donee, LOAN, MUTUUM, DEPOSIT, AND PLEDGE
or should desire to revoke the gift, the gift should • Real contracts, or contracts concluded by
be restored to the donor. A donor can revoke a delivery, are exemplified by a loan for
gift on proof of ingratitude on the part of the consumption — a loan of things as are
recipient. If the gift was in consideration of estimated by weight, number, or measure, such
marriage, the gift can be revoked if the marriage as wine, oil, corn,money in coins, copper, silver,
did not push through. or gold.
WILLS AND SUCCESSION • Things which we transfer on condition that the

• The law of testament must fulfill the following receiver should bring back, at a future time, noT
conditions: the same things, but other things of the same
1. the witnesses, and the necessity of their kind and quality is called mutuum, because
all being present through the execution of whatwas meum or mine becomes tuum or
the will; thine. If the receiver of a loan for consumption
2. the signing of the document by the loses what he has received by some accident,
testator and the witnesses; the exact such as fire, the fall of a building, shipwreck, or
number of witnesses; the attack of thieves or enemies, he still remains
3. the sealing of the will by them; bound to give the thing of the same kind and
4. the name of the heir written by either the quality.
testator or the witnesses; and
5. that everything should be done • A thing is not lent for use if any recompense is
according to the tenor of this enactment received or agreed upon for the service; for
• Heirs: (1) children, (2) person whom testator has where this is the case, the use of the thing is held
never seen; (3) substitutes
to be a rent, for a loan for use should always be ACTIONS AND INTERDICTS
free.
• An action is the right of suing before a judge
• A person with whom a thing is deposited for for what is due. It is of two kinds:
custody is responsible for the restoration of the 1. REAL
identical thing deposited, though only when it is - if the plaintiff asserts a ground of
lost through his fault. Similarly, the creditor who action relating to a thing
takes a thing in pledge is under a real obligation, 2. PERSONAL
and is bound to restore the thing itself by the - if the defendant is either under a
action of pledge. contractual or delictal obligation
to the plaintiff
PARTNERSHIP AND AGENCY
• The continuance of a partnership depends on • Interdicts are divided into
the continuing consent of the members. It is 1. abstention,
dissolved by notice of withdrawal from any one - forbids the doing of some act —
of them. It is also dissolved by the death of a for instance, the violent ejection
partner, for when a man enters into a contract of a bona fide possessor
of partnership, he selects as his partner a definite 2. restitution, and
person. - refers to restitution of property
• The authority given to an agent can be 3. production
annulled by revocation before he commences - refers to orders to produce
to act. Similarly, the death of either the principal persons or property; for instance,
or the agent before the latter commences to act the production of a person whose
extinguishes the agent’s authority. freedom is in question, or of a
freeman whose patron wishes to
QUASI-CONTRACTS demand certain services, or of
• Obligations that do not originate in a contract children on the petition of their
and do not arise from a delict are parents
quasicontractual, such as when a man has
managed the business of another during the III. LATIN MAXIMS
latter’s absence. The reason is general
convenience lest during the business owner’s 1987 PHILIPPINE CONSTITUTION
absence, those affairs would be entirely 1. Accusare nemo se debet, nisi caram
neglected. No one would attend to the business Deo.
of another if one were to have no action for the (No one is compelled to accuse himself,
recovery of any outlay he might have incurred in except before God.)
so doing. 2. Audi alteram partem.
(Hear the other side.)
DELICTS AND QUASI-DELICTS 3. Domus sua cuique est tutissimun
• Obligations resulting from a delict itself include refugium.
theft, robbery, wrongful damage, or injury. (To everyone, his house is his surest
refuge.)
4. Non bis in idem.
(No one shall be punished for the same (A mad man is punished only by his
offense.) madness.)
5. Actus invitus, non est meus actus.
NEW CIVIL CODE (An involuntary act is not one’s act.)
1. Accessorium sequitur naturam sui 6. Nullum crimen, nulla poena sine lege.
principalis. (There is no crime where there is no law
(The accessory follows the nature of its punishing it.)
principal.) 7. Sociis fit culpae qui nocentum sublevat.
2. Aedificium solo credit. (He who helps the guilty shares the
(The building yields to the land.) crime.)
3. Boni judicis est lites dirimere.
(It is the duty of good justice to prevent 1997 RULES OF CIVIL PROCEDURE
litigation.) 1. Cujus juris erit accessorium.
4. Caveat emptor. (He who has jurisdiction of the principal
(Buyer beware.) thing has jurisdiction of the accessory
5. Ex pacto illicito non oritur action. also.)
(No action arises out of illicit bargain.) 2. Res judicata inter partes jus facit.
6. Facta legem facunt inter partes. (A question adjudicated between
(Stipulations have the force of law parties after hearing them makes the law
between parties.) of that question.)
7. Finita voluntate, finitum est mandatum. 3. Stare decisis et non quieta movere.
(Upon the termination of the will, the (Follow past precedents and do not
agency is terminated.) disturb what has been settled.)
8. Genus nunquam peruit. 4. De similibus idem est judicium.
(Generic things do not perish.) (Concerning similars, the judgment is the
9. Homo est et qui est futurus. same.)
(He is already a man who will become a
man.) REVISED RULES OF EVIDENCE
10. Ignorantia legis neminem excusat. 1. Ei incumbit probation qui dicit, non qui
(Ignorance of the law does not excuse.) negat.
(He who asserts, not he who denies, must
prove.)
REVISED PENAL CODE 2. Non allegata non probate.
1. Actus non facit reum nisi mens sit rea. (That which is not alleged cannot be
(The act does not make a person guilty proved.)
unless the mind is also guilty.) 3. Qui tace consentire videtur.
2. Arma in armatos jura sinunt. (Silence means consent.)
(The law permits taking arms against 4. Res ipsa loquitur.
armed persons.) (The thing speaks for itself.)
3. Favorabilia sunt amplianda, odiosa 5. Semper praesumitur pro matrimonio.
restringenda. (Always presume marriage.)
(Penal laws which are favorable to the 6. Ut res magis valeat quam pereat.
accused are given retroactive effect.) (The law should be interpreted to uphold
4. Furiosus solo furore punitur. than to destroy it.)
LEGAL ETHICS
1. Judex non potest injuriam sibi datam

punier.
(A judge cannot punish an injury to
himself.)
CHAPTER V - CRIMINAL LAW AND FAMILY LAW: also good to the criminal since the law will break
THE CHRISTIAN PHILOSOPHERS his excessive indulgence of his will.
I. AQUINAS ON CRIME AND PUNISHMENT CONDITIONS OF CRIMINAL LIABLITY

• Voluntariness and involuntariness of actions
● People are of various predispositions and must be taken into account in judging liability.
environment. Out of fear, a person can • Voluntariness requires an act of knowledge
be habituated to do what is virtuous since and an act of will, “to wish and to act”
penal law forces him to do or resist doing • Violence and fear can cause involuntariness
an act until it becomes his second nature. of actions, according to Aquinas.
Human law may be a hindrance to some, • Ignorance also causes involuntariness, but
but the just man will conform to it Aquinas distinguished between (1) antecedent,
spontaneously, as if no law is needed for (2) concomitant, and (3) consequent
him because how he lives is already in ignorance.
agreement with the law.
1. Antecedent ignorance
● Aquinas distinguished general from - “ignorance of the circumstance
particular justice. General justice refers to of one’s act,” such as a man who,
legal justice that serves the community. It despite precaution, shoots and
is also referred to as “distributive justice” hits a passerby.
as it distributes the common good. On 2. Concomitant ignorance
one hand, particular justice is in relation to - when despite ignorance of what
individuals who are individually different. was committed, a criminal act
● Rendering justice does not necessarily would nevertheless be done had
mean same treatment, but equitable the circumstances been right.
treatment on what the other deserves by Aquinas raised as example a man
natural or contractual/positive right; that who wished to kill his foe but
is, rendering to each that “which is due to instead killed a stag.
him according to equality of proportion” 3. Consequent ignorance
- if it was deliberate with respect to
RESTITUTION AND RETRIBUTION what one can and ought to know.
• Restitution is an act of commutative justice,

where equality is reestablished by giving back II. WOJTYLA’S TALKS ABOUT SEX
what is taken. It can be made by repayment of
the equivalent or by compensation. • While most sex education studies interpret
man’s sexuality much like animal sexuality,
• When a person violates the law, he or she Wojtyla reminded us that what is “natural” to
violates the civil order and the common good. beasts is “subnatural” to humans.
Retribution through exemplary punishment must
restore that order. Although punishment will be THE SEXUAL PARTNER AS A PERSON
perceived as bad by the law breaker, it will be • Wojtyla reformulated the Kantian imperative
for the common good of the community, and in that anyone who treats another as means to
an end violates that person’s natural right to when the “I” becomes inseparable from the “I”
pursue his ends. of the other.
• Sexual objectification reduces a person to a
consumer item, making him or her dispensable III. DOVETAILING OF CHURCH AND STATE
once another person possesses the same
attribute or when the person loses his or her • Leonado Mercado cited four (4) political
desirable traits. Love is the only legitimate sexual models of church and state relations where we
response to a person, which ensures that the can draw the proper symbiosis between these
other will not be treated only as a sexual object. two entities.
• The value of a person demands an
unconditional commitment of the will in the 1. SACRED HETERONOMY
fullest possible way. In sex, this occurs in the - spiritual concerns are perceived
demand for committed love in marriage. as superior to the material, and
therefore, religion rules all affairs of
PLEASURE AND LOVE life.
• Pleasure is natural and good, but it is not the 2. FIRST PROFANE AUTONOMY
highest good. Love is the fullest realization of the - gives the government power over
possibilities of man. Because of love, one the sacred. This occurs in
expects and discovers more from oneself Communist countries like China,
because of the affirmation of the other. where the government appoints
• In human phenomenology, “love is a bishops in the official “Patriotic
phenomenon peculiar to the world of human Catholic Church” and where
beings”. churches must be registered.
3. SECOND PROFANE AUTONOMY
THE MEANING OF TOTAL SELF-GIVING - s the Western (American) ideal.
• A fully developed sexual relationship is only There is a demarcation between
possible in a durable union where total selfgiving Church and State, geared
is encouraged. towards independent co-
existence.
• Meanwhile, total self-giving can be frustrated
by contraception. If a man truly loves his wife, 4. THEANDRIC ONTONOMY
he needs to accept and regard the natural - (from Greek word theos or god,
order, the natural cycle of the woman, as part of and andros, man) weaves
her being. The couple will see each other’s together the political and the
fertility as a gift, not a disease to be medicated. spiritual fabric of society.
• Finally, love is not just something in the man or SEPARATION OF CHURCH AND STATE
in the woman, but something that must be • Filipino culture, like its Asian neighbors, by
common to them. Love is bilateral. It is shared practice belongs to the theandric
and interpersonal — “a force which joins and ontonomy model.
unites”.
• Fr. Joaquin Bernas, SJ, a member of the
• How does one measure love? Love is gauged 1986 Constitutional Commission, noted
by responsibility. The full stage of love is reached that the law’s separation clause only
means two things. First, that the

government will not establish any religion;
and second, that every citizen shall enjoy
freedom of conscience.
CHAPTER VI - Carter v Boehm – uberrima ides

LEX MERCATORIA: FROM CUSTOM TO LAW (assumption of good faith)
- Supported free trade which was evident
• LEX MERCATORIA in Luke v Lyde
- was a body of rules and principles laid - First judicial pronouncement on patent
down by medieval merchants to regulate was said to have been made in Loardet
their deals. It was administered by special v Johnson
commercial courts along main trade - Somersett’s Case ruled that slave trade is
routes, also called as “fair courts.” unlawful and that the black must be
discharged
- Because traders did not have the same
means of exchange and may not always PHILIPPINE COMMERCIAL LAWS, COPY AND
have them at hand, lex mercatoria PASTE
originated the “writing obligatory” that
we now refer to as bills of exchange, • It is to be noted that mercantile law, unlike
checks, and promissory notes. other fields of law, is customary in nature and
develops with the state of the economy, market
conditions, and commercial technology. It may
- From a body of customs, lex mercatoria not therefore be wise to rest them on black-
was eventually encoded into the laws of letter law such as the Constitution, but must be
England through the Statute of Merchants free to follow the “best practices” of the trade.
in 1283 and later in France through the
Code Commercial in 1807.
- became part of common law in 1700s as

mercantile customs were cited by
England’s chief justices Edward Coke and
William Murray, the first Earl of Mansfield
known as the “Father of English
Commercial Law.”
MANSFIELD, THE “LORD” OF COMMERCIAL LAW
WILLIAM MURRAY
- First Earl of Mansfield
- Lord of Commercial Law who became
Chief Justice of the King’s Bench in 1756
- Satisfactory system of commercial law
must be in harmony with the recognized
mercantile customs of other civilized
nations
- Sped up judicial system by submission of
motions
CHAPTER VII - REMEDIAL LAW: THE EMPIRICAL 4. proposing the most general of
PHILOSOPHERS notions
- warned of the four “idols” in making
I. BACON’S INDUCTIVE JURISPRUDENCE judgments:
1. the “idols of the tribe,” referring to
FRANCIS BACON illusions of appearances and
- Bacon practiced law and served as reliance on our primitive senses.
speaker of the Parliament, Solicitor 2. the “idols of the cave,” referring to
General, and Lord Chancellor of generalization of our limited
England’s Queen Elizabeth I and King “caved” experience.
James I. 3. the “idols of the market,” or the
imperfections coming from the
- “Father of Experimental Science” and his choice of language and
“inductive method” paved way to the communication; and
Industrial Age, where science moved 4. “Idols of the theater,” or the flaws
from speculation to invention and of philosophies, theories, and
discovery. speculations.
- He proposed that scientific work should II. EXHUMING THE EVIDENCE: HUME’S
be for charitable purposes to alleviate PRESUMPTIONS AND PROBABILITIES
man’s miseries.
Why disputable presumptions?
- used his inductive method to justify the Because these are events that are more likely,
use of precedents in common-law, which probable, customary, or regular in occurrence,
he termed as “unwritten laws.” although not necessarily and always true. As
such, these are only presumptions.
- stressed the importance of legal reports
and archiving as source of precedents DAVID HUME
that had been available with the - said that if the sun rises today, it does not
invention of printing. He used and follow that it will tomorrow. There is no
popularized this new method through necessity or certainty that the sun will rise
legal briefs and was thus considered by tomorrow since improbabilities can
some jurists to be the “Father of Modern always happen.
Jurisprudence.”
The reason why we do favor probabilities is
- Introduced his inductive method that based on “custom,” that is, what we became
requires: accustomed based on the evidence of past
1. the accumulation of a store of experience. Everything is possible indeed, but in
particular empirical observations in our judgment, we better err on the side of the
a tabulation or repository. more possible, of what more regularly or
2. inductively inferring lesser axioms, customarily occurs. But again, these are not
3. then inductively inferring middle facts, only presumptions. If a contrary fact is
axioms, presented, the presumption is disputed.
PROBABILITY AND IMPROBABILITY matters that can be taken with judicial notice
without need of evidence (Rule 129).
According to Humes,
laws of reason and science are • For Wittgenstein, doubts and suspicions on
generalizations of the mind. Anything and common-sense matters are “motivated.” These
everything can happen against things we are called “hinge propositions.”
consider customary. What we consider as
causal events are mere habitual • Doubt on something that one has no good
occurrences or sequence of events and the reason to doubt, such as whether one who has
sequence can always change. two hands indeed has two hands, is groundless
doubt.
Hume’s fork
- Analysis of David Hume
- useful in being skeptical of proffered
evidence. In court, lawyers and
investigators try to establish the cause
and effect of events and how things must
have happened based on evidence from
a crime scene.
• In any case, the judgment can only be based

on degrees of evidence, subject to appeal,
reconsideration, and new trial. It will be too
presumptuous to think in terms of absolute
certainties even in a final and executory
judgment.
• Hume suggested that we can only make

impressions on whether something is more or less
probable based on repeated experience. We
should refrain from thinking in terms of causality
(cause and effect)
WITTGENSTEIN ON THE GAME OF DOUBT
• Hume’s skepticism on the law of cause and

effect and the regularity of the laws of nature
was tempered by Ludwig Wittgenstein criterion
of “common sense” and “healthy human
understanding.” These are relevant in justifying
what the Rules of Evidence refers to as
“conclusive presumptions” (Rule 131, Sec. 2) and
CHAPTER VIII - POLITICAL LAW: REFORM,

REVOLUTION, AND RESISTANCE THE NEO-
CLASSICAL PHILOSOPHERS II. HOBBES ON SOVEREIGN IMMUNITY
• Social Contract theorists do not explain the THOMAS HOBBES

origin of society through the divine rights of kings - Argued in Leviathan that life was
or through the Biblical account of salvation originally “poor, nasty, brutish, and
history. They believe that the fundamentals of short,” in a primitive state of war of every
society were brought about by conventions and man against every man.
agreements, tacit or explicit, also called as the - Humans are in constant fear of theft,
“social contract.” invasion, violence, and death.
• Before the social contract, there were only the JUSTIFYING AUTHORITARIANISM
natural rights of man (a take-off from natural law
for Locke), or the natural state of man, which • The mutual transferring of natural right to the
Hobbes depicted to be nasty and barbaric, and Sovereign is the social contract.
Rousseau impressed as pristine like a Garden of
Eden. In any case, the modern State, civil • For Hobbes, the injustices of a ruler are better
society, and civil rights were born after the social than the
contract. Laws, including a Constitution, written injustices under the state of nature.
or unwritten, are expressions of this contract.
• Hobbes said, “men will be compelled equally
I. MACHIAVELLI: THE BREACH AND THE PRACTICE to the performance of their covenants, by the
OF POLITICS terror of some punishment.”
Niccolò di Bernardo dei Machiavelli

- authored The Prince III. THOMAS MORE ON REPUBLICANISM AND THE
FAMILY AS THE BASIC UNITY OF SOCIETY
Machieavelli’s Tips on How to Rule
1. If the ruler cannot be good always, he • Sir Thomas More, the English Chancellor of
must at least pretend King Henry VIII, while also believing in the
2. There are two ways of fighting: one by corrupt “fallen” nature of man, arrived at a
law, another by force. different conclusion from Hobbes
3. The leader should himself shower the
favors but should delegate the FAMILIAL STATE
punishments. • Because of the human tendency to err,
4. It is good to be both loved and feared human beings have a special need for
5. Punishments should be done all at once government. The first government in the natural
so that seldom felt will be less society is the family, where as free beings, we
remembered. are ordered to love and care for others. It is in
6. A ruler must be shrewd and swift to match the family where we learn the virtues to be
the inconsistency of the people and the exercised in a larger civil society.
political environment. family, where as free beings, we are ordered to
7. The end justifies the means. love and care for others. It is in the family where
we learn the virtues to be exercised in a larger actually a blank canvas (“tabula rasa”). Rather,
civil society. human beings happen to share the same
• A large family is the basic unit of society experiences that are rationalized into universal
• More believed in relative divorce which we call principles.
in the Philippines as “legal separation,” but not
absolute divorce that allows remarriage,
especially for the guilty party. THE PEOPLE’S TRUST
• The social contract is a pact between free
THE RULE OF LAW men for the public good.
• While human laws are from traditions of men, • To obtain a balance of power, Locke, like
they are relatively the work of prudent citizens Baron de Montesquieu, proposed that the
concerned for the common good. Although no legislative, executive, and federative powers
law is perfect, lawlessness would make people must be separated in a “tripartite system”
rush into every kind of crime. Laws must be (Montesquieu proposed the Judicial, rather
respected then. If faced with unjust laws, More, than the Federative, as the third branch of
like Socrates before him, showed respectful government) so that no government body
resistance by accepting his verdict of death for could be all-powerful.
treason. His last words were: “I am the King’s
good servant, but God’s first.” • Locke opted for a parliamentary form of
government, majority rule, and popular
representation since sovereignty ultimately
IV. UNLOCKING INALIENABLE RIGHTS resides with the people. The express consent of
the governed must be obtained under a social
• While Hobbes emphasized the irrational in contract because it is the people who know
man, Locke stressed that man has reason and what is best for themselves.
conscience, which makes him a self-determining
free individual. Locke was influenced by the • Sovereign power cannot be transferred to
struggles of his Puritan parents, who escaped the those whom the people did not entrust this
religious persecution in England. power. This became known as the “doctrine of
non-delegation.”
• The rights that would not otherwise exist without
the promulgation of laws brought about by the
social contract are called “civil rights,” such as V. ROUSING MAN TO BE FREE
the right to a trial. Civil rights should protect and • Like Locke, Rousseau conceived man to be
supplement “natural rights” through written laws. originally good and free in his idea of the “noble
Civil society is needed to put up with the savage.” It finds application in the doctrine of
inconveniences of the state of nature and for “presumption of innocence” that puts the
mutual preservation of lives, liberties, and burden on society to prove the guilt of an
estates. These rights are natural to mankind and accused.
cannot be given away.
• Rousseau sought to reform society and is most
• For Locke, there are universal natural laws not famous for saying in his The Social Contract that
because human beings have innate ideas or “man was born free but everywhere he is in
knowledge of these since the human mind is chains.”
UTILITARIANISM
THE GENERAL WILL
• In Rousseau’s Social Contract, each individual • Utilitarianism is the philosophy of pursuing
is considered part of the whole society, the pleasure and avoiding pain, for “the greatest
collective body. It is a moral body where citizens happiness of the greatest number.” However,
share in the sovereign power. People join society Mill’s version of utilitarianism, unlike Jeremy
not to abdicate their natural liberty but for Bentham before him, considers the kind or
improvement and sophistication. quality of pleasure and not just its quantity or
intensity.
• The social contract creates a new corporate
entity endowed with a “general will” as an • By “right” means something that society has
outcome of a democratic process. The general an obligation to protect under a general utility.
will should come from all to apply to all. It is In terms of quantity, the law must prefer what
important that legislators and citizens have gives happiness to the most; and in terms of
shared values and identity of interest. The quality, the satisfaction of man’s higher faculties
people, meanwhile, must be informed and is preferable.
publicly spirited. In a spirit of fraternity, duties are
selfimposed BEING USEFUL
through deliberation and election.
• Mill claimed that once an obligation is
VI. THE “MILL” OF HAPPINESS AND LIBERTY assigned to a person, he can be punished for a
“breach of duty.”
• John Stuart Mill, member of the English
Parliament, wrote in On Liberty that “the only • Mill defined duty “as a thing which may be
purpose for which power can be rightly exacted from a person, as one exacts a debt.”
exercised over any member of a civilized Without this exact and clear imperative duty,
community, against his will, is to prevent harm to however, society must bear with any
others.” This became known as the “Harm “constructive injury” that a person may
Principle.” happenstance create in exercising his liberties,
in favor of the greater good of human freedom.
FREEDOM OF ACTION AND THOUGHT
• A “perfect obligation” is one with a correlative
• Freedom of action must be distinguished from right that can be demanded by others.
freedom of thought. Whereas one’s actions can
be interfered with if a person becomes a • An “imperfect obligation” has no
nuisance to others, he is free to believe at his corresponding right but a mere beneficence or
own cost whatever he wants to believe. generosity that one is not bound to practice.
• Freedom of thought loses its immunity from the • Once perfect, moral, and legal obligations
law under circumstances when the form of have been satisfied, one must be free to pursue
expression has become “a positive instigation to one’s choice of pleasures.
a mischievous act.” Mill cited as example the
incitement of a mob to do harm to others.
VII. CIVIL DISOBEDIENCE AS A DUTY • Thoreau did not suggest rushing to revolution
or resignation from office for each or any wrong,
HENRY DAVID THOREAU but one has to consider the consequence of
- Advocated civil disobedience not only as resistance and whether the law is clearly unjust.
a right but as a duty to pro-actively
change an oppressive system. • Mahatma Gandhi later followed Thoreau’s
- Called as “the greatest American way of civil disobedience or satyagraha, by
anarchist” by feminist Emma Goldman, encouraging India not to pay salt taxes to the
although Thoreau himself did not British government and that they make salt of
advocate anarchism or the absence of their own.
government but “better government.”
- Explained that he aspired for a better
government not “no government,” but no
government would be better than bad
government.
- believed more in self-governance than
political governance, and that the
government should take steps to
recognize the individual’s right to govern
his own affairs.
- compared those who submissively follow
the law to automatons and machines,
who march to the order of the ruler the
way soldiers, privates, jailers, and
“powder-monkeys” do.
- Militarization is an example of passive,
unthinking obedience to the law.
WHEN REVOLUTION IS RIGHT (AND RIPE)
When does a revolution become a right?

Thoreau said it is “the right to refuse allegiance
to, and to resist, the government, when its
tyranny or its inefficiency are great and
unendurable.” For instance, when “oppression
and robbery are organized,” when there is
slavery, and when the “country is unjustly overrun
and conquered by a foreign army.”
• The rule of expediency of government no

longer applies when “a people, as well as the
individual, must do justice, cost what it may.”
CHAPTER IX
LABOR LAW: SOCIALISM AND COMMUNISM • Unfortunately, the spiraling excesses of
Communist revolutions, in its impatient efforts to
alter society through class liquidation,
• Mao Tse Tung, in his Report on an Investigation confiscation of property and farmlands, and
of the Peasant Movement in Hunan, explained: social reengineering, produced the greatest
“A revolution is not a dinner party, or writing an recorded massacres, death camps, genocides,
essay, or painting a picture, or doing and famines
embroidery. It cannot be so refined, so leisurely known as the “Red Holocaust.”
and gentle, so temperate, kind, courteous,
restrained and magnanimous. A revolution is an • It is the endorsement of violence and
insurrection, an act of violence by which one disregard for life and property that made
class overthrows another.” Communism unappealing to otherwise Socialist
sympathizers.
• The perfect society is a return to social
ownership (“Socialism”) through nationalization • Alexis de Tocqueville warned against the
of economic resources (land, raw materials, tendency of socialism to be contemptuous of
factories, industries). the individual, to make him a cog in the
overbearing machinery of the State.
• According to Vladimir Lenin,
Socialism, which is the conversion of private to • Capitalist economies maintain that labor
public property, is just the first phase of rights and economic reform can be achieved
Communism. in a democratic process without resorting to
Communism, such as by passing Anti-Trust laws,
• In a commun, common ownership would Fair Labor Standards acts, and entering into
obliterate entitlements and collective bargaining agreements.
difference of classes and there would eventually
be no need for the State or for laws as the • Socialists argue that Capitalism has inherent
people imbibe the rule that “from each politico-economic flaws, such as materialism,
according to his ability, to each according to his exploitation of the workers, private
needs.” individualism, monopolies, licentious abuse of
freedoms and rights, increasing inequalities in
THE RED REVOLUTION wealth, perpetuation to power, Fascism,
religious propaganda, and lost sense of
• For Marx, man must reclaim his greatest virtues communalism and nationalism. Capitalism
from the gods and idols of society. It is the inevitably widens the gap between rich and
working man who must be dignified, exalted and poor and eliminates any middle class.
glorified, and not the man in the palaces or in
the heavens. • The aim of social legislation is “social justice,”
defined in the case of Calalang v. Williams (G.R.
• Religion is the “opium of the people” that No. 47800, December 2, 1940) as
prevents him from confronting his miseries in “neither communism, nor despotism, nor
exchange for an imaginary after-life that he atomism nor anarchy, but the
cannot even be sure of. 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
approximated.”
• The failure of Marxism in solving tyranny and

poverty was largely due to its theory that a state
must be governed only by a single unified party
that will do the central planning of economic
activities.
Welfare-State Capitalism
- It favors the provision of basic services
and regulation of industries but not
complete control/prohibition, or on the
other hand, laissez-faire deregulation.
• The anti-establishment spirit, ushered by

Socialism, spawned the deconstructive critique
of patriarchal culture, Western systems and
ideology, and industrialization. This led to our
current postmodern legal policies.
CHAPTER X - EVERYONE “IN”: POSTMODERNISM FIRST-WAVE FEMINISM (1900 s 1950 s)

AND THE FUTURE OF LAW ● Right to education
● Participation to politics
● Equal opportunity to employment
Postmodernism ● Temperance and abolitionist
- stresses relativism and respect for movements
opinions, values, expressions, chance, ● Maternalism
difference, and change, in contrast with ● Equal opportunity to health diseases
“modernism” that emphasizes
universalism, uniformity, purpose, form, SECOND-WAVE FEMINISM
hierarchy, categories, structure, and
order. • Second wave feminists believe that while we
- was in reaction to the militarism and are born into a “ which is a biological give,
absolutisms of the modern era that led to “gender,”“ and “sexual orientation” are cultural
two World Wars and the threat of another, and can be reconstructed where ultimately,
with the uncompromising doctrines of there are no essential difference between
metanarrative “isms”: Communism, women and men.
Capitalism, Naziism, Fascism, racism, and
religious fundamentalism. • Second wave feminists emphasized social
- accentuates each person’s unique value. equality and reproductive autonomy through
There is no point in sacrificing lives for the the right to “free love.”
sake of aggrandized ideologies and ● Social Equality
beliefs. ● Reproductive autonomy
● Women being free from men
I. FEMINISM, SO SHE SAYS ● Marriage
● Household roles
• There are different kinds of feminism that have ● Objectifying women
been divided into “three waves” of feminist
struggles. THIRD-WAVE FEMINISM
• The third phase of feminism began in the ‘90s
• Incidentally, the feminist work of Plato was It emphasizes female empowerment or “girl
titled “The Three Waves,” where he argued that power feminism.” It dropped the “man hate,”
if we expect women to take their full share in “male v. female” rhetoric that women are
society, we must teach and train them the same victims; and in turn, celebrates female culture,
things as we do men. girl style, celebrity women, female sexuality,
female social/cyber networking, and unique
• Plato said that the main difference of man and female experiences of pregnancy and
woman is simply the function of reproduction, motherhood.
which is irrelevant in assigning occupations; and ● Physiological and Emotional Difference
if child rearing be a hindrance, we might as well ● Sex and Reproduction
abolish the family.
RIGHTS OF MOTHER AND CHILD them “abnormal.” They have no place

before the accepted science or the law.
• On Roe v. Wade, which legalized abortion in - against the modernist concept that
the U.S., Greer noted that what women gained strictly tabulates human beings and
was the “right” of others to subject them to human experience into specific
invasive procedures and abortive pills in order to normative types and species; into
terminate unwanted pregnancies much for straitjacket categories, labeling, and
general convenience — “unwanted not just by classifications.
them but by their parents, their sexual partners,
the governments who would not support • The implication in the legal and justice process
mothers, the employers who would not employ is that the law should refrain from branding
mothers, the landlords who would not accept human subjects the way we do with things and
tenants with children, the schools that would not elemental species, and always to question the
accept students with children.” basis and need for classification since human
subjects and society itself undergo shifting
• Feminism is entering a new phase of securing states of being. Classification registers people
the rights of women in the womb against into categories, and problematizes or
sexselective abortion and for pre-natal health marginalizes whatever it excludes.
care for both the mother and her unborn child.
• Othering is a means to discriminate, and
• Feminist methods of legal critique include the totalizes certain conditions, circumstances and
“woman question,” which probes on the gender acts to delineate a person as “insane,” “ill,”
implications of the law by taking into account “criminal,” “pervert,” etc.
the point of view of women on sensitive issues
usually trivialized by men. CIVILIZATION MAKES MAD HATTERS
• Another method is “consciousness raising,” • Madness was in fact, during ancient times,
where women are encouraged to come out considered a gift, associated with mysticism
and share their experiences publicly to attract and mediums. The Greek tragedies were faithful
public attention and to challenge dominant to acknowledging both the rational and
versions of social reality. Testimonies of victims of irrational side of humanity, especially in trying
abuse and stories of hope and redemption can times.
empower women and transform views, more
than do arguments and debates. • It was during the so-called Enlightenment era
— when people were expected to be always
II. FOUCAULT ON “OTHER” rationally and scientifically “enlightened” —
that mad people had to be put into asylums or
• MICHAEL FOUCAULT madhouses to keep them locked for study and
- examined how each generation scrutiny.
produces its own “truths” of who should
be excluded and how, which he called
“othering.” Society’s “others” are people
who do not conform. Society considers
THE PRISON MAKES THE CRIMINAL extremes of pure opposite-sex or same-

sex attractions are rare.
• In the Birth of the Prison, Foucault noted how - question the pretense of those who deny
penology moved from systems of torture and experiences of attraction with both the
inquisition to guillotines and prison cells based on same and the opposite sex, or who are
technologies in criminology. A free man will find rigid with what it means to be masculine
himself behind bars because the law has or feminine.
defined him to be lawless. How he will be treated
will depend on the available and accepted • In classical Greek perios, the attraction
correctional system. between men was not necessarily sexual but
can be intellectual/pedagogical or a rite of
• Majority of the prison population are indigents passage called “pederasty.”
who cannot afford a bail, a good lawyer, or a
considerate jury or judge. Unlike the bourgeoisie
who have the benefit of high culture and III. GOING GREEN: PHILOSOPHY OF ECOLOGY
sustenance, many prisoners are socially
disadvantaged and marred with the extremities • Environmentalism is another recent
of life to begin with. movement, given the alarming effects of global
warming and environmental neglect, resulting
• The prison itself produces and perpetuates in the fast depletion of natural resources and
criminal behavior because people the extinction of plant and animal species by
institutionalized get used to being treated in the day.
inhumane ways and to prison culture.
• Bill Devall George Sessions argued for “deep
ENGENDERING THE HOMOSEXUAL CLASS ecology worldview” against the traditional
“dominant worldview” of man’s right to
• Foucault criticizes sexologists for inventing dominate the earth.
categories of “perversions” and sexual labeling
that ushered modern identity problems. He
claimed that the Enlightenment period gave
birth to classifications like “homosexual” and
“heterosexual,” whereas there were no
equivalent terms before.
• Sexual preference was not a question of one’s

personality in the pre-modern period. Until
• According to Peter Singer, “Animals are
recently, people were not identified according
sentient beings They are fellows when they feel
to their sexual taste.
pleasure and pain”
QUEER THEORY
• Animals have an “equal right to
- sexuality is likened into a pendulum that
live”(“biocentric equality”) and advocate
can swing from one end to another, in
vegetarianism
varying intensities and diversities, where
• Biocentric equality has been criticized though • The five variables according to Harvard
for disturbing the natural food chain that it is sociologist Donald Black
biased against plant life as the only legitimate
source of food 1. STRATIFICATION
- refers to inequalities in wealth
• “Wild law” is the term used for laws consistent - underclass law tends to be
with earth jurisprudence which balances human punitive or penal
rights with other members of Nature, including - upper class law is compensatory,
plants, animals, and the ecosystem rehabilitative, or therapeutic
- people of equal class conciliatory
• Some international law norms and principles 2. MORPHOLOGY
below seek to ensure “environmental justice”, - refers to the degree of
which gained ground after 1992 following the interdependence
adoption of the Rio Declaration on Environment - immigrants law tends to be
and Development and the UN Framework xenophobic and accusatory
Convention on Climate Change (UNFCCC). - fellows accommodating
3. CULTURE
In the Philippines, environmental laws are being - refers to the degree of conformity
enforced through the Department of - pluralistic cultures have the
Environment and Natural Resources (DENR), benefit of complexity and
while the Philippine Animal Welfare Society diversity of ideas
(paws) promotes animal rights. - homogeneous cultures tend to be
conservative and reclusive
1. Common, but Differentiated 4. ORGANIZATION
Responsibilities - refers to the degree of political
2. Polluter Pays Principle administration
3. Intergenerational Equity - laws increase with government
- Oposa v. Factoran bureaucratization and centralization
known internationally as the Minors case 5. SOCIAL CONTROL
In this case, the parents appealed to - refers to the measure of normativity.
cancel timber license agreements on - more different social control = more
behalf of “unborn generations”. distant and indifferent to laws
4. Precautionary Principle
5. Transboundary Harm
6. Sustainable Development
7. Technology Transfer
8. Rights of Indigenous Peoples
IV. LAW, QUO VADIS?
• For social legal theorists, the direction of law is

indicative of the state of society and social
relationships
CHAPTER XI - THE “X” FACTORS OF PHILIPPINE

LEGAL PARADIGM The centrality of the family
• Philippine law has generally been adapted - Catholicism,

from the Western legal system. - Agricultural and rural Eastern culture
- In the Philippines, as well as in
Examples: neighboring Asian cultures, family ties
tend to be strong, extending to nuclear
families, in a man woman children
setting
- Filipinos are fond of children, and almost
every Catholic dwelling has the image of
the Sto Nino or the Infant Jesus. the term
for the family, maganak means to
Westernization is inevitable for most of Asia
procreate.
- No Eastern country has legislated same
After centuries of arresting and obliterating the
sex marriage Divorce, too, while allowed
development of the legal processes and
in most of Asia, generally remains taboo
philosophies of colonized countries such as the
and uncommon.
Philippines, the alternative is to adopt the
developed and accustomed systems of the
- For Philippine culture, courtship,
West as it may be too late to risk untested waters.
marriage, pregnancy, and the rearing of
children are not private affairs but
Apart from the Calantiao Code, which was
occasions to solidify alliances and to
found to be a hoax, and the Maragtas Code,
perpetuate community values.
which is a collection of legends of datus pre-
Hispanic Filipinos did not leave a written draft of
Family and marriage are not private
their laws What we have are pass on traditions of
contracts thus, the Philippine
indigenous communities For the Muslim South
Constitution declares that the family is
under Shariah law, they have at least the Qur’an
“the foundation of the nation,” and
as both religious and
marriage “an inviolable social institution
legal reference
(Art XV, Sec 1-2). The State has the duty
to preserve not any family but the ideal
Essential difference between Westerners and
family, which to most Filipinos means a
Filipino
home with a father, mother, and child.
So it goes for the only country that
enshrined in its Constitutional preamble –
along with truth, justice, freedom,
equality, and peace — the regime of
love. Charity begins at home, but
unfortunately at times, also ends there.

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PHILOSOPHY OF LAW NOTES ARELLANO UNIVERSITY SCHOOL OF LAW 2022

BY RESHELLE PAULINE F. ABAD PROFESSOR: ATTY. JOYCE S. LAPUZ

with “case law,” in fact means the theory and

Postmodernists say that law is just a self-

As society advances, must law also advance to

The answer will depend on the political

Should lawyers cast the philosopher’s stone?

The practice of law and itself be a practice of

CHAPTER II The common good need not be the

Reasonable ordinance (rationis ordination) –

1. The Common Good (bonus

5. Contradictions in the law.

Should Law be coercive to be enforceable? Law and Mores

A contractual obligation is considered void one deserves according to the same

DISTINCTIONS between RELIGIOUS and SECULAR ● This is where reasonable classification

● That “men are created equal” means knowledge, play, aesthetic

2. The Positivist Theory

● Positivists are positive on what the law

man, at the end of the day, cares only

● Jurisprudence assumes an abstract 5. The Critical Theory

● Law operates in a specific language, 4. Forms-and-Fundamentals Approach

● The theory is call “functional” by ● Formalism adheres to ethical

3. The Economic Approach ● Philip Bobbit, wrote that the different

● Bobbit identified six main modalities:

a. historical, which must be used when

I. THE NATURE OF MANKIND PHASES OF NATURAL LAW THEORY

● Ancient Greek philosophers believed that 1. Classical Phase

● Natural law, in philosophy, system of right - in reference to general principles of law

● Reason makes us perceive what is

● Polity or democracy is the most stable

V. ACQUINAS ON NATURAL INCLININATIONS exercise of reason to control sexual

VI. ENLIGHTENMENT PHILOSOPHERS ON NATURAL ● It is the law of nature to abide by pacts

● Our need for good relations with others is

● The law of nations is now known as

● For Maritain, natural imperatives are

● Jus cogens, meaning “compelling law,” is

CHAPTER IV be moral. Ius in Latin means “law.” It also

● Institutiones - to be read to understand ● Wedlock or matrimony is the union of

THE LAW ON PERSONS

CHILDEN AND MARRIAGE

THE OWNERSHIP OF ANIMALS ● If he finds it in another man’s land by

● But as soon as it has escaped from his LAND TITLE

neighbor’s roof from a gutter into his yard;

OCCUPATION AND POSSESSION

WILLS AND SUCCESSION • Things which we transfer on condition that the

1. Judex non potest injuriam sibi datam

I. AQUINAS ON CRIME AND PUNISHMENT CONDITIONS OF CRIMINAL LIABLITY

• Restitution is an act of commutative justice,

means two things. First, that the

CHAPTER VI - Carter v Boehm – uberrima ides

- became part of common law in 1700s as

MANSFIELD, THE “LORD” OF COMMERCIAL LAW

• In any case, the judgment can only be based

• Hume suggested that we can only make

WITTGENSTEIN ON THE GAME OF DOUBT

• Hume’s skepticism on the law of cause and

CHAPTER VIII - POLITICAL LAW: REFORM,

• Social Contract theorists do not explain the THOMAS HOBBES

Niccolò di Bernardo dei Machiavelli

WHEN REVOLUTION IS RIGHT (AND RIPE)

When does a revolution become a right?

• The rule of expediency of government no

of social and economic forces by the State