TEOLOGICAL PERSPECTIVE
life in society; enabling them to dimension of reality”.
I. LABELS
- The label “Philosophical
Jurisprudence”: used to identify the
thinking and method of this juristic
school (Teleological).
- Major part of its discourse lies in the
realm of metaphysics.
- Teleological Jurisprudence: more
appropriate in designating the
thinking and method of this
particular school of jurisprudence.
- Label emphasizes the fundamental
point that the law is ordained for the
achievement of the precepts of
natural law. It is considered as the
telos of the law.
II. NATURAL LAW BASIS
- Teleological concept is based on the
natural law of philosophy.
- Teleologists consider the natural law
as the most potent force in the
development of legal institutions and
concept.
- Completeness of the legal order
can be achieved upon the precepts of
natural law.
- Good legal order can be deduced
from natural law, hence universally
valid for all people.
III. THE GREEK CONCEPT
- Socrates, Plato, and Aristotle (SPA),
believed that good faith in dealing
with one another is the condition of
distinguish between right or wrong,
the good or bad.
- Human relation is not the use of
power but the observance of
honesty and good faith; as nature of
human being.
- Same with Bocobo Commission
(codiGied Civil Laws of PH); Chapter
2 of Preliminary Title deals with
harmonious basis of human relations.
- Art. 10; in the exercise of rights and
performance of obligations, person
must act with justice, observe
honesty and good faith, and give
everyone their due.
a. Absolute Justice (SOCRATES)
Two principal considerations of
Socrates: (1) no person is
intentionally bad or evil because of
his understanding of justice; (2) only
the temperate person knows
himself, thus able to bring his
emotions under control. The basis
of know Thyself.
Episteme – knowledge of Justice;
Doxa – mere opinion of Justice.
A temperate person will do what is
virtuous and just (Gods), will also
do what is ought and avoid what is
ought not (for Obligations), will
also act properly and patiently
endure when necessary (Relation to
Other Persons).
b. Rational Justice (PLATO)
There is hierarchy of reality,
according to Plato. IDEAL and
PHYSICAL; “another timeless
Plato gave the name “ideas”; all
objects and activities yielding to the
physical senses are only
representations of, or names after,
certain “ideas” by their relationship
to them. (Representational Reality)
For Plato, humans are capable of
discerning justice from injustice
even in their minds, alone. Rational
Justice is sufGicient to enable humans
to attain good faith and moral nature.
For Plato, it is the central theme of
his concept of law.
In Rational Justice; a person
attending to one’s proper individual
function, and there is justice when a
person fulGills such function and not
take up roles of the other.
c. Particular Justice (ARISTOTLE)
The sound sense view of justice;
good life is within reach of humans.
For Aristotle, Justice is nothing more
pretentious than the virtue of
epiekeia (being reasonable, equity).
Justice is sound and sensible when, in
light of circumstances, remains
equal and fair. Consent cannot
justify an unfair or unequal
treatment.
It has become the concept of volunte
non >it iniuria (to a willing person, it
is not wrong)
Hallmark of person’s moral: good
faith and equality.
 Justice is a particular virtue and
NOT a universal ingredient in the
application of law. The rigidity of
administration of justice should be
tempered with fair equality.
Proportional Justice: entitled to
what they are entitled on the basis of
ability and achievement.
In Rodriguez v. Tan, where SC ruled
than Tan cannot be required to
reimburse the salaries he had
received from plaintiff who was later
declared lawfully elected. This is
particular justice, the salaries go to
the person who rendered the
service.
V.
d. Law as Product of Reason Related
to Justice and Equity
Righteousness, justice, fairness, and
equality are potentialities of the law.
IV. ROMAN CONCEPT
a. Cicero (of being Fair and Just)
Compulsion as an element of the law.
Cicero posited that the law cannot be
an effective means of social control on
the basis of rationality alone, but
must be able to compel obedience.
For him, the law is a “natural force
that effectively controls society”.
Its natural function is to summon the
people to obey it by means of
commands and averts the
wrongdoing thru prohibition.
Cicero deGined justice as the
sentiment which maintains good
human relations by means of
fairness and equality. He opposed
prudence as a factor in determining
the justice or injustice of an act. It
may be prudent; but is it fair or not?
b. Gaius
Rules established by citizens to
govern themselves fall under jus
civile (civil law), while those common
to all based on natural law are
classiGied under jus naturale
Those that are in derogation of the
natural law are not laws at all. Laws
must be reexamined once in a
while.
AQUINIAN CONCEPT
(Thomas Aquinas)
Thomas Aquinas thought of the law
as an institution ordained by God.
The notion of nature as source of law
was substituted by power of God,
who is the legislator of the whole
justice and governor of all things.
Aquinas believed in the rational
capacity of human beings; what is
accessible to human reason is not
divine law but only natural.
Thomas held that human reason
inGluenced as it is by physiological
sensations is not suf`icient to bring
humans to a correct understanding of
what is right and just.
Reason limited by sensation cannot
discover the universal good;
separates positive law from precepts
of natural law.
Right reason is the governing rule of
human conduct “for the common
good, which is preferable, because
common good of the whole is GOD
HIMSELF”
Must satisfy the precepts of natural
law, when any rule departs from it,
then it is no longer valid but a
perversion of the law.
a. Justice
Justice as an ethical virtue; and
justice as a juristic norm.
As ethical virtue: considered
inherent in every person.
As a juristic norm: it is the habit
whereby man renders to each one his
rights by a constant and perpetual
will.”
b. Law and Sovereignty
The public welfare or the common
happiness is the `irst concern of the
people since the direction of
anything to this end is the concern of
those whom the purpose belongs.
The idea of self-determination, or
sovereignty, is one of the gleaming
facts of Aquinian Tradition.
Sovereignty is not subject to law, for
it is the source of the law. It remains
with the people by whom and for
whom all government exists.
c. Immutability of Law
According to Aquinas, changes may
occur in the subsequent applications
of law, and this may be by expansion
or contraction in accordance with
the civilization of time and place.
VI. MODERN TELEOLOGICAL ANALYSIS Interest of the state became a John Austin: the
cardinal standard, especially with relationship between
a. Juristic Approach regards to judicial interpretation and law and morality is
case review regarding the merely accidental and
In Greco-Roman-Aquinian, law is the government. not direct.
moral nature and good faith of man;
However, Kohler and Hook When they conform with the Keep a legal order apart
considered the knowledge of right interest of the state, they it is good from the perplexities of
and wrong, or good and evil relative and just.
ethics.
to the changing conditions of time,
place, and people. Hume believed that an act or idea is
Legal order can exist
either approved or not based on the
public benefit from it.
without conscious
b. Ethical Relativity
regard for norms and
Kohler: natural law have no fixed In sum, justice is related to the morality.
meaning and may vary from time to interest of the state and makes of
time. “there is no ideal absolute or It no more than a social virtue. May b. Uncluttered by
absolute ideal”. No absolute formula not be endowed with fair equality. Metaphysical
in determining legal order in society. Speculations
THE POSITIVIST APPROACH
Legal concepts, including law, have Empirical Sphere of
their own respective ideal I. SEED OF LEGAL POSITIVISM Reality rather than a
tendencies, not the same tendencies. transcendental sphere
Uses comparative analysis. By John of the ideas.
Hook: what is right depends on the
Austin.
primary desires of the people. The Positivists has felt all
problem of what is right or wrong is along that it is better to
the equilibration of interest. Good Consciously created by the state.
As such, the law is positive, that is free the concept of law
and bad depends on our primary from metaphysical
desires. They change as these criteria to say posited by the authority of
the state. speculations.
change.

II. POSITIVIST APPROACH III. HOBBES-AUSTIN

Justice is induced by varying factors
CONCEPT
and changing times.
Two important points that both
c. Interest of the State refer to recurrent question of According to Hobbes; there
separation of law from must be some coercive
The interest in the integrity and moral/natural law. power to compel men to
stability of the state has been the performance of an
considered the supreme morality or a. Law Not Necessarily a Moral agreement before the term
ultimate value of society. Concept just and unjust can take
place.
Based on theory that if the state Law is not necessarily concern
cannot protect its own structure, or anxious for the norms of Hobbes posited that the
then it follows that no subordinate sovereign is not subject to
morality.
value can be protected. the laws for having the
power to make and repeal
 laws. The sovereign may free V. PURE POSITIVE LAW RESPONSE b. Vienna Brand
himself from their subjection. (Pure Positive Law)
Positivist Jurisprudents insist that
All that is done by such power is nothing is immoral that is legal. Hans Kelsen removed
owned by the people. from the concept of law
However, moral view of the law any moral implications.
Austin: he opposed the idea of contends that for a law to be valid,
Blackstone that positive law is void it should be moral (like the RH Bill Very different from
simply because it does not conform being criticized because it goes Austin and Hobbes as
with the precepts of natural law. against common morality of family) Kelsen completely
(because again, positivist believe drops the moral
that even without norms or These debates gave birth to the connotations on the
morality, legal order can exist, Pure Positive Law. concept of law.
created by people)
a. Lausanne Brand Only considers
For him, conformity and validity (Pure Juridical Science) HUMAN norms and not
are two entirely different problems norms from other
with different solutions. Ernest Roguin felt strongly superhuman sources
that the answer to the problem (Gods, Nature, etc.)
IV. LEGAL POSITIVISM of validity of positive law lies
in pure juridical science Focuses on empirical
According to Austin. There is a consistent with the culture of law and not
clear-cut distinction between the people. transcendental norms.
morals and law, natural law and
simply just law. To wit: Consistent with the case of Thus, there is no reason
Codification of German Civil to misinterpret it now
Hart and Cairns both agreed with Code where Savigny and because he has excluded
Austin, but further pointed out that Gierke felt that application of it from the idea of
morals, norms, and natural law do Roman Laws in different natural laws and/or
have influence with positive law. German provinces is pure moral laws.
However, it is indeed absurd for insult to their volkgeist and
positive law to be null and void had been subjected to The law is simply not
when it is contrary to the same. unnecessary culture and pure when cluttered
traditions of another people. with axiological
Positivist Jurisprudence can be norms. The validity of
good or bad, sound or stupid/silly, Same thing happened in positive law no longer
as long as such badness or silliness codification of laws of the state depends on their
is general in scope, affecting all of New York, where James correspondence with
persons belonging to a class. Carter referenced Savigny ethical norms.
and Gierke.
Positive Law has its own Law is separate from
criterion/test own, namely the moral law and natural
three concepts it sits on: law.
Sovereign, Command, and
Sanction.
 system of coordinated Thus, in the
i. Purification of norms of equal level, Normative Legal
Positive Law but a hierarchy of Order, the
norms of different authority of a
ONE, The nature of the levels. legal norm
law must be (law) is not only
presented For example, if a rule preserved but
empirically, it must lacks legal lineage, then also, its
stand on its own merit it cannot claim its place functions are
without make-up of in the hierarchy of clarified.
axiological ideas. norms.
Must be in
SECOND, It is the law A grandnorm hierarchy,
that is compromised (unchallengeable) is because it
and loses its power as a conceived by a commands
means of social control collective will, capacity people, it makes
in clash of diverse and competence of it different from
political values. people free from social norms
axiological ideas. It that are
On the first, law can doesn’t originate nor considered
be immanent (innate) depend on equal in
in nature only if the moral/natural law. standing.
nature is a lawgiver.
To set a norm is a Question of Legal norms
function of will, and Normativeness have both
human will is a psychic incentive and
phenomenon different The answer deals with sanctions
from human reason. the difference of an is- which
statement, and a distinguishes
Human reason can only should-statement. them from
adapt and know norms, social norms.
but it is human will that The is-statement
can create it. expresses a simple For Kelsen,;
reason/motive for juristic concept
On the second, It is action. While, the (depends on
ideal to preserve the should-statement pure facts of
theory of positive law expresses a different coercion), while
from influence of any kind of reason, it is a for Austin and
political tendencies. tense indicative of a Hobbes;
conscientious desire psychological
ii. Normative Legal to do an obligation. one (to comply
Order (without any thought of in fear and awe
getting away from with the
The nature of Law anything) state/sovereign
(Positive) is not just a )
iii. Empirical Justice

Kelsen was after justice

that is real and
possible, FACTUAL.

In relation to legal
ordering, justice is real
and possible when it is
appropriate to the evil
which the society has
right to avoid.